Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/americancityprogOOmcbarich 


Columftia  Wini\)tx^itp  Itecturesf 


AMERICAN  CITY  PROGRESS 
AND  THE  LAW 

THE  HEWITT  LECTURES 
1917 


COLUMBIA  UNIVERSITY  PRESS 
SALES  AGENTS 


NEW  YORK 

LEMCKE  &  BUECHNER 
30-32  West  27TH  Street 

LONDON 

HUMPHREY  MILFORD 
Amen  Corner.  E.C. 


COLUMBIA  UNIVERSITY  LECTURES 


AMERICAN  CITY  PROGRESS 
AND  THE  LAW 


BY 


HOWARD  LEE  McBAIN 

DORMAN  B.  EATON  PROFESSOR  OF  MUNICIPAL  SCIENCE 
AND  ADMINISTRATION  IN  COLUMBIA  UNIVERSITY 


COLUMBIA  UNIVERSITY  PRESS 
1918 

AU  rights  reserved 


Copyright,  1918 
By  COLUMBIA  UNIVERSITY  PRESS 


Set  up  and  electrotyped.         Published  January,  1918 


PREFACE 

This  volume  contains  the  substance  of  a  series  of 
lectures  given  upon  the  Hewitt  Foundation  at  Cooper 
Union  in  the  city  of  New  York  during  the  months  of 
February  and  March,  1917.    It  deals  with  certain  of  the 
more  important  rules  of  law  that  are  involved  in  some 
of  the  forward-looking  movements  in  American  cities. 
Under  our  constitutional  system  nearly  every  so-called 
reform  movement  must  reckon  with  the  law;    and 
municipal  reforms  are  especially  liable  to  be  called  to 
this  reckoning.    For  of  the  several  important  types  of 
unit  in  our  complicated  system  of  government,  the  city 
operates  under  the  largest  number  of  restrictions  im- 
posed by  written  fundamental  laws.    As  a  subordinate 
agency  of  the  state  it  is  subject  to  most  of  those  far- 
reaching  restrictions  imposed  upon  the  states  by  the 
fundamental  law  of  the  narion.     It  is  naturally  con- 
trolled also  by  many  limitations  embodied  in  the  funda- 
mental law  of  the  particular  state  of  which  it  is  a  part. . 
And  it  is  further  subject  to  one  and  all  of  the  usually 
numerous  restrictions  imposed  by  its  own  fundamental 
law — its  charter. 

It  cannot  be  too  greatly  emphasized  that  the  scope 
of  this  volume  is  limited  to  an  examinarion  of  legal 
•principles.  In  what  respects  does  the  law  as  it  now 
stands  facilitate  or  obstruct  the  city  in  its  endeavor  to 
apply  this  or  that  new  policy  to  the  solution  of  an 
existing  problem?    With  the  policy  itself— whether  it 


389535 


vi  PREFACE 

be,  for  example,  of  home  rule,  or  of  billboard  regulation, 
or  of  zoning,  or  of  municipal  ownership  of  utilities — ^we 
are  not  primarily  concerned.  Within  the  limits  of  this 
volume  it  would  be  manifestly  impossible,  even  if  it  were 
desirable,  to  discuss  in  adequate  fashion  the  pros  and 
cons  of  the  numerous  controversial  questions  that  are 
suggested  by  the  topics  under  review.  No  considerable 
reference  will  be  made  to  the  theoretical,  the  fiscal, 
the  political,  the  economic,  the  social  aspects  of  the 
policies  under  discussion  except  in  so  far  as  the  views 
of  the  courts  have  been  predicated  upon  one  or  more 
of  these  aspects.   The  law  is  the  subj  ect  of  our  attention. 

Howard  Lee  McBain 

Warsaw,  New  York 
August,  191 7 


CONTENTS 

Chapter  Page 

I.   Home  Rule  by  Legislative  Grant 

The  chief  argument  for  municipal  home  rule; 
home  rule  by  constitutional  grant;  the  legal  prob- 
lem involved  in  a  legislative  grant  of  home  rule; 
the  delegation  of  legislative  power  to  the  cor- 
porate authorities  of  cities;  the  reference  of 
charters  to  the  electors;  the  delegation  of  char- 
ter-making power  to  the  corporate  authorities 
and  the  electors;  legislative  grants  of  home  rule.  I 

II.   Breaking  Down  the  Rule  of  Strict  Con- 
struction of  Municipal  Powers 

Loose  V.  strict  construction  of  enumerated 
powers;  liberality  toward  the  city  in  the  earlier 
cases;  examples  of  the  rule  of  strict  construction; 
implied  power  to  grant  franchises  and  to  regulate 
public  utilities;  implied  power  to  own  and  oper- 
ate public  utilities;  implied  power  to  expand  a 
utility  into  the  commercial  field;  implied  power 
to  furnish  a  utility  service  beyond  the  city 
limits;  implied  power  to  engage  in  a  business  of 
a  collateral  character.  3^ 

*/III.   Expanding  the  Police  Power — ^Smoke 
and  Billboards 

The  common  subjects  of  the  police  power;  the 
police  power  in  relation  to  constitutional  limit- 
ations ;  the  police  power  distinguished  from  taxa- 
tion and  eminent  domain;  the  smoke  nuisance; 
billboard  regulations.  5^ 

ylV»  City  Planning — Building  Heights  and 
Zoning 

Limitation  on  the  height  of  buildings;  zones 
from  which  offensive  trades  and  industries  are 


viii  CONTENTS 

Chapter  page 

excluded;  general  "industrial"  zones;  zones  for 
the  regulation  of  building  heights;  zones  for  the 
establishment  of  building  lines;  zones  for  ex- 
clusively residential  purposes;  the  protection  of 
property  values  as  a  subject  of  the  police  power,  9^ 

V.  City  Planning — Excess  Condemnation 

The  rule  of  "public  use;"  is  a  constitutional 
provision  necessary?  excess  condemnation  of 
remnants  of  land;  excess  condemnation  for  the 
"protection"  of  public  improvements;  excess 
condemnation  for  undefined  purposes;  excess 
condemnation  for  financial  profit;  alternatives 
to  excess  condemnation.  1 24 

VI.   Municipal  Ownership  of  Public  Utilities 

What  IS  a  public  utility?  municipal  ownership 
under  constitutional  sanction;  municipal  owner- 
ship under  statutory  sanction;  acquisition  by 
eminent  domain.  153 

VII.   Control  over  Living  Costs 

Early  regulation  of  prices;  development  of  the 
law  governing  price  regulation;  what  is  a  "pub- 
lic" business?  municipal  markets;  what  lines  of 
business  may  the  city  enter?  1 74 

VIII.   Municipal  Recreation 

Parks  and  playgrounds;  public  halls,  audi- 
toriums, opera  houses,  theaters;  entertainments, 
celebrations,  concerts;  municipal  v.  commer- 
cialized recreation.  203 

IX»   Promotion  of  Commerce  and  Industry 

Development  of  water  power;  advertising  the 
city;  municipal  exhibits  at  expositions;  financial 
aid  to  private  enterprises.  22 o 

Table  of  Cases  251 

Index  261 


CHAPTER  I 

HOME  RULE  BY  LEGISLATIVE  GRANT 

Congestion  of  population  is  the  essential  premise  of 
city  existence.  Out  of  this  premise  arise  economic- 
and  social  problems  that  are  manifestly  localized. 
The  city,  in  consequence,  is  a  more  or  less  naturals 
unit  of  government.  It  is  a  far  more  logical  unit 
than  is  a  state  of  the  American  Union;  it  is  even 
more  logical  than  are  many  of  the  national  units  of 
the  world. 

In  consideration  of  the  obvious  dependence  of  urban 
life  upon  rural  activities,  the  city  is  of  course  not  a 
logical  unit  for  a  completely  independent  government. 
It  may  be  impossible  to  define  with  precision  which  of 
the  problems  of  government  within  a  city  are  inherently 
local  in  character.  It  seems,  nevertheless,  beyond  dis- 
pute that  there  are  problems  that  are  peculiarly  local. 
This  is  recognized  to  an  extent  in  the  naked  fact  of 
incorporation,  in  the  mere  investing  of  the  city  with 
legal  personality.  Probably  no  one  could  be  found  who 
would  be  hardy  enough  to  urge  that  cities  as  corporate 
entities  should  be  ruthlessly  cast  among  our  institu- 
tional discards — that  their  entire  functions  should  be 
carried  on  by  direct  action  of  the  state.  Yet  in  some 
respects  we  have  drifted  perilously  near  to  this,  as  a 
hasty  glance  at  the  evolution  of  relations  between  the 
city  and  the  state  will  disclose. 


2  CITY  PROGRESiS  AND  THE  LAW 

'  Tk^  chief  argument  for  municipal  home  rule 

In  the  early  days  of  our  history  municipal  charters 
were  brief  and  simple  instruments.  In  somewhat  gen- 
eral terms  these  charters  conferred  powers  of  local  self- 
government.  A  considerable  discretion  both  in  the 
interpretation  of  these  powers  and  in  the  actual  working 
out  of  the  scheme  of  city  government  was  vested  in  a 
few  prescribed  authorities.  It  seems  unnecessary  to 
recount  the  steps  by  which  all  this  was  changed.  The 
rule  of  law  became  firmly  established  that,  in  the 
absence  of  some  constitutional  provision  in  point,  the 
will  of  the  state  legislature  was  supreme ;  cities  enjoyed 
no  "rights"  that  had  to  be  respected.^  From  an  atti- 
tude of  self-imposed  deference  toward  cities,  legisla- 
tures gradually  crossed  over  into  an  attitude  of  dis- 
trust, indifference,  spoliation,  and  sometimes  even  of 
open  hostility.  Some — perhaps  much — of  the  distrust 
was  deserved;  although  it  must  be  remarked  that  the 
"guardianship"  of  the  legislature  usually  left  much  to 
be  desired.  For  the  indifference  there  was  perhaps  some 
justification.  For  the  spoliation  and  hostility  there  was 
manifestly  no  excuse. 

This  must  be  said  also — ^that  with  the  expansion  of 
municipal  functions  and  the  consequent  swelling  of 
municipal  expenditures,  a  very  natural  change  came 
about  in  the  concept  of  what  a  municipal  charter  should 
contain.  A  charter  is  the  fundamental  law  of  the  city; 
and  while  there  is  probably  no  one  who  can  define  the 
term  "fundamental"  as  used  in  this  connection  to  the 
satisfaction   of  any   considerable  number  of  persons 

1  McBain,  The  Doctrine  of  an  Inherent  Right  of  Local  Self-Government,  in 
16  Columbia  Law  Review,  190  and  299. 


LEGISLATIVE  HOME  RULE  3 

other  than  himself,  there  is  no  doubt  that  our  notion 
of  the  proper  scope  of  a  municipal  charter,  however 
general  it  may  be,  has  widened.  Wherever  the  charter- 
making  power  may  be  lodged,  whether  in  the  state 
legislature  or  in  the  local  community,  we  shall  proba- 
bly never  return  to  the  brief  municipal  charters  of 
earlier  times. 

However  that  may  be,  it  is  simply  a  fact  that  in  the 
course  of  time  the  legislature  has,  by  the  enactment  of 
elaborate  and  ever  more  elaborate  charters  and  charter 
amendments,  thrust  its  hands  into  the  very  minutiae 
of  city  government.  It  has  occupied  field  after  field 
that  was  formerly  either  wholly  unoccupied  or  left  to 
local  action.  It  has  regulated  detail  after  detail  that 
never  should  have  been  made  the  subject  of  charter 
provision.  The  fundamental  law  of  New  York  State 
contains  about  25,000  words.  The  fundamental  law 
of  New  York  City,  not  including  unrepealed  provisions 
of  early  charters  and  many  special  laws  applicable  to 
the  city,  contains  over  400,000  words.  This  is  the 
prime  fact  upon  which  the  argument  for  home  rule  for 
cities  is  founded.  Bound  in  the  innumerable  impedi- 
ments of  complicated  charter  laws,  cities  have  too 
little  opportunity  for  constructive  self-development. 
They  must  eternally  appeal  to  an  extraneous  superior, 
the  state  legislature;  and  they  must  often  be  denied 
their  requests.  They  must  eternally  fight  against 
"interference'*  in  their  affairs,  which  is  none  the  less 
reprehensible  because  it  is  legal. 

There  are,  of  course,  those  who  urge  that  the  city 
is  in  need  of  constant  tutelage.  This  amounts  to  the 
assertion  that  the  city  is  incapable  of  self-government. 


4  CITY  PROGRESS  AND  THE  LAW 

It  may  be  freely  admitted  that  all  of  our  units  of  gov- 
ernment show  occasional,  if  not  indeed  frequent,  ap- 
pearances of  political  incapacity.  It  may  be  admitted 
also  that  in  many  instances  cities  have  been  protected 
against  themselves  by  state  legislature.  But  the  homely 
fact  is  that  while  in  the  fluxes  of  our  politics  state  gov- 
ernments are  sometimes  superior  to  city  governments 
in  standards  of  civic  righteousness  and  ability,  they  are 
also  sometimes  grossly  inferior  in  these  standards.  In 
the  face  of  such  fluxes  tutelage  may  be  needed  today 
and  protection  against  tutelage,  tomorrow.  By  and 
large,  the  capacity  of  the  city  for  self  government  is 
doubtless  measured  directly  by  our  capacity  as  a 
people  for  creating  and  operating  democratic  institu- 
tions. 

Home  rule  by  constitutional  grant 

Whatever  general  arguments  may  be  advanced  in  op- 
position to  the  plan  of  extending  larger  powers  to  cities, 
home  rule  is  arriving  fast.  One-fourth  of  the  states 
of  the  Union  have  by  constitutional  provision  already 
conferred  upon  some  or  all  of  their  cities  the  power  to 
frame  and  adopt  their  own  charters.  ^  In  a  number  of 
other  states  there  is  active  agitation  for  a  similar  con- 
stitutional grant.  It  is  more  important  to  face  this  fact 
than  to  discuss  the  pros  and  cons  of  home  rule  as  a 
policy. 

In  most  of  the  twelve  states  that  have  adopted  this 
system,  the  locally  made  charter  is  framed  by  an  elected 
board  or  commission  and  submitted  to  a  vote  of  the 

2  Missouri  (1875);  California  (1879);  Washington  (1889);  Minnesota 
(1896);  Colorado  (1902);  Oregon  (1906);  Oklahoma  (1908);  Michigan 
(1908);    Arizona  (1912);    Ohio  (1912);    Nebraska  (1912);    Texas  (1912). 


LEGISLATIVE  HOME  RULE  5 

people.  Amendments  are  also  made  subject  to  a  refe- 
rendum. But  the  plan  of  granting  home  rule  by  con- 
stitutional provision  has  produced  some  unhappy  con- 
sequences. It  is  easy  enough  to  say  that  cities  may 
adopt  charters  for  their  ''own  government,"  or  regulate 
their  ''municipal  affairs,"  or  exercise  "all  powers  of  local 
self-government,"  but  what  do  these  undefined  phrases 
mean?  Who  shall  decide  whether  this  or  that  specific 
matter  is  a  proper  subject  for  regulation  and  control  by 
a  municipality?  And  where  a  state  law  covers  the  same 
subject  matter  as  a  charter  provision,  who  shall  declare 
whether  this  matter  is  one  of  state  or  of  local  concern? 
It  is  the  courts  that  have  been  saddled  with  the  almost 
impossible  duty  of  defining  the  vague  and  uncertain 
terms  in  which  these  constitutional  grants  of  power 
have  been  made,  and  out  of  this  situation  a  very  con- 
siderable body  of  complicated  case  law  has  developed. ^ 
It  may  well  be  asked  whether  a  grant  of  home-rule 
powers  actually  necessitates  so  radical  a  step  as  the 
delegation  of  charter-making  authority.  In  answer  to 
this  question  several  observations  may  be  made.  In 
the  first  place,  it  is  difificult  to  see  how  any  substantial 
grant  of  self-governing  powers  could  be  made  without 
giving  cities  the  power  to  alter  the  elaborate  and  often 
highly  restrictive  charters  under  which  many  of  them 
are  operating.  In  the  second  place,  as  already  re- 
marked, our  concept  of  the  proper  scope  of  a  charter  has 
certainly  expanded.  A  grant  of  power  to  the  people  of 
a  city  is  not  necessarily  identical  with  a  grant  to  the 
corporate  authorities  of  the  city.    A  fair-sized  charter, 

*  For  an  analysis  of  the  numerous  cases,  see  McBain,  The  Law  and  the 
Practice  of  Municipal  Home  Rule. 


6  CITY  PROGRESS  AND  THE  LAW 

a  local  fundamental  law,  setting  the  metes  and  bounds 
within  which  these  corporate  authorities  must  operate, 
is  doubtless  so  desirable  that  it  may  be  said  to  be  indis- 
pensable. In  the  third  place,  it  is  practically  impossible 
in  the  usual  modern  charter  to  consider  the  powers 
granted  as  something  separate  and  distinct  from  the 
organization  of  the  government.  Few  powers  are 
granted  to  the  city  as  a  city;  most  powers  are  conferred 
upon  specifically  designated  corporate  authorities.  In 
other  words,  powers  are  distributed  with  direct  refer- 
ence to  the  organization  provided ;  and  the  organization 
is  created  with  direct  reference  to  the  powers  conferred. 
It  is  practically  inconceivable,  therefore,  that  a  city 
could  enjoy  any  considerable  measure  of  home  rule 
unless  it  were  competent  to  alter  the  organization  of  its 
government,  which  means  inescapably  that  it  must  be 
endowed  with  some  portion  or  the  whole  of  the  charter- 
making  power. 

The  legal  problem  involved  in  a  legislative  grant 
of  home  rule 

It  is  well  known  that  the  attitude  of  state  legislatures 
toward  cities  has  undergone  something  of  a  change 
within  comparatively  recent  years.  It  is  probable  that 
many  legislatures  would  be  willing  to  grant  a  consider- 
able measure  of  self-governing  power  if  they  considered 
that  they  were  competent  to  do  so  under  the  usual 
terms  of  our  state  constitutions.  A  grant  of  home  rule 
by  statute  rather  than  by  constitutional  provision  has 
many  arguments  in  its  favor.  Imperfections  in  the 
machinery  for  the  exercise  of  such  power  could  be  much 
more  easily  rectified.    The  scope  of  matters  to  be  regu- 


LEGISLATIVE  HOME  RULE  \     7    ) 

lated  by  the  locally  made  charter  could  be  defined  by 
the  legislature  instead  of  by  the  courts;  and,  after  all, 
it  seems  clear  that  the  determination  of  the  actual  ex- 
tent of  powers  to  be  exercised  is  wholly  a  question  of 
policy  and  not  at  all  a  question  of  law.  As  such,  it  is  a 
question  calling  for  legislative  rather  than  judicial  set- 
tlement. When  it  is  considered,  moreover,  that  our 
methods  of  dealing  with  governmental  problems  must  of 
necessity  be  subject  to  change — that  a  function  which 
at  one  time  may  be  regarded  as  primarily  one  of  local 
concern  may  at  another  time  call  for  regulation  and 
control  by  the  state — is  it  not  apparent  that  readjust- 
ments between  the  city  and  the  state  in  the  matter  of 
their  respective  spheres  of  control  are  from  time  to  time 
indispensable?  Is  it  not  also  apparent  that  such  re- 
adjustments may  be  more  easily  and  more  satisfactorily 
effected  by  the  amendment  of  a  statute  rather  than  by 
the  process  of  constant  tinkering  with  the  state  consti- 
tution? On  the  whole,  it  seems  not  to  be  denied  that  if 
an  adequate  measure  of  home  rule  for  cities  can  be 
secured  by  legislative  grant,  this  would  be  preferable 
to  the  plan  of  cementing  a  possibly  large  but  unques- 
tionably vague  grant  of  power  in  the  fundamental  law 
of  the  state. 

The  question  before  us,  then,  is  whether  the  legisla- 
ture, in  the  absence  of  a  specific  grant  of  authority,  has 
the  constitutional  power  to  institute  this  reform  for 
which  there  is  so  much  clamor.  This  question  brings  up 
for  consideration  a  fundamental  rule  of  American  con- 
stitutional law — the  rule  which  declares  that  the  legis- 
lative power  that  is  vested  in  two  designated  houses  of 
legislation  may  not  be  delegated.    The  books  are  full  of 


8  CITY  PROGRESS  AND  THE  LAW 

cases  involving  the  application  of  this  rule  in  one  con- 
nection or  another.  It  would  be  impossible,  even  if  it 
were  desirable,  to  attempt  here  anything  like  an  ex- 
haustive analysis  of  all  that  the  courts  have  said  upon 
this  subject.*  A  few  points,  however,  are  of  especial 
interest. 

If  it  be  conceded  that  a  grant  of  adequate  home  rule 
to  cities  necessitates  a  devolution  of  some  portion  or  the 
whole  of  the  charter-making  power,  it  is  manifest  that 
this  power  must  be  conferred  either  upon  some  ordinary 
or  specially  chosen  corporate  body  of  the  city,  or  upon 
the  local  electors,  or  upon  a  combination  of  the  two. 
This  being  so,  it  is  of  importance  to  consider  the  rule  of 
non-delegation  of  legislative  power,  first,  in  its  applica- 
tion to  the  powers  that  may  be  delegated  to  the  cor- 
porate authorities  of  cities,  and  second,  in  its  applica- 
tion to  the  reference  of  legislative  charters  to  the  local 
voters  for  acceptance  or  rejection. 

The  delegation  of  legislative  power  to  the  corporate 
authorities  of  cities 
It  has  been  universally  conceded  that  the  legislature 
may  delegate  to  the  corporate  authorities  of  a  city  the 
power  to  enact  by-laws  and  ordinances  which  have  the 
force  of  law — which  are,  indeed,  nothing  more  nor  less 
than  laws,  regulating,  as  they  often  do,  precisely  the 
same  subjects  that  are  regulated  by  acts  of  the  legis- 
lature itself.  The  practice  of  delegating  such  power  as 
this  is  of  ancient  origin,  and  it  is  well-nigh  inconceiv- 
able that  a  city  without  such  power  could  operate  as  a 

^  For  a  more  detailed  discussion  of  this  entire  subject,  see  McBain,  The 
Delegation  of  Legislative  Power  to  Cities,  in  Political  Science  Quarterly,  XXXII, 
pp.  276  and  391. 


LEGISLATIVE  HOME  RULE  9 

municipal  government  at  all.  Here,  then,  is  at  least 
one  universal  exception  to  the  rule  against  the  delega- 
tion of  legislative  power.  Nor  have  the  courts  been  at 
any  pains  to  define  or  delimit  the  scope  of  subjects  that 
might  be  given  over  to  regulations  by  local  ordinance. 
The  legislature  has  been  at  complete  liberty  to  cover 
this  or  that  subject  by  statute  or  to  delegate  control  over 
it  to  the  municipal  authorities. 

In  a  few  cases,  however,  it  has  been  held  that  the 
legislature  may  not  delegate  to  the  corporate  authorities 
of  cities  the  power  to  alter  in  any  respect  the  provisions 
of  the  charters  under  which  they  are  operating.  ^  Two 
recent  New  York  statutes  are  of  especial  interest  upon 
this  point.  One  of  these,  the  so-called  home  rule  act 
of  1913,®  apparently  attempted  to  confer  upon  cities 
powers  not  only  in  addition  to  those  already  granted  by 
their  charters  but  also  in  conflict  with  existing  charter 
limitations.  This  law  was  so  broadly  drawn  and  em- 
bodied so  much  of  uncertainty  that  the  cities  of  the 
state  did  not  hasten  to  avail  themselves  of  the  oppor- 
tunities which  it  may  possibly  afford.  However,  in  the 
opinion  of  the  attorney  general  of  the  state  ^  the  law 
did  not  intend  to  allow  cities  to  regulate  all  matters 
relating  to  the  conditions  and  relationships  of  the  local 
corporate  authorities  or  to  delegate  the  power  to  change 
the  form  of  government  of  the  city.  Further  than  this, 
the  view  was  expressed  that  ^^such  power  would  he  in- 

s  Haywood  v.  Mayor,  etc.  of  Savannah,  12  Ga.  404  (1853);  State  v.  Field, 
17  Mo.  529  (1853);  Dexheimer  v.  City  of  Orange,  60  N.  J.  L.  11 1  (1897). 
See  also  Attorney  General  ex  rel.  Booth  v.  McGuinness,  78  N.  J.  L,  346 
(1909). 

6  Laws  of  New  York,  1913,  ch.  247. 

7  Report  of  the  Attorney  General  of  New  York,  1913,  II,  p.  375. 


10  CITY  PROGRESS  AND  THE  LAW 

effectual  if  attempted  to  he  granted^  In  other  words,  it 
was  evidently  the  attorney  general's  opinion  that  the 
power  to  amend  the  local  charter  and  thus  to  repeal  a 
state  law  had  not  been  granted  by  this  law  and  could 
not  be  constitutionally  delegated. 

The  so-called  optional  city  government  law,  enacted 
by  the  legislature  of  New  York  in  1914,^  has  also  been 
under  review  by  the  attorney  general  of  the  state  in 
respect  to  this  same  point.  This  law,  which  allowed 
any  city  of  the  second  or  third  class  to  adopt  any  one 
of  six  forms  of  government,  clearly  vested  in  the  cor- 
porate authorities  of  such  city  the  power  to  repeal  by 
ordinance  certain  portions  of  the  old  charter  that  were 
not  directly  repealed  by  the  adoption  of  the  new  law. 
The  attorney  general  held  that  it  was  beyond  the  power 
of  the  legislature  to  "authorize  a  municipal  corporation 
to  repeal  by  ordinance  a  statute  of  the  state."  There 
was,  in  consequence,  insuperable  objection  "to  any  at- 
tempt to  delegate  to  the  council  of  such  city  the  power 
to  say  which  part  of  the  existing  charter  shall  be  re- 
tained and  which  part  of  it  rejected."^ 

Now  there  is  no  question  that  the  legislature  is  fully 
competent  to  make  the  charter  of  a  city  a  very  brief 
instrument,  vesting  in  the  corporate  authorities  created 
by  such  instrument  large  powers  to  elaborate  the  local 
government  by  ordinance.  In  the  case  of  existing 
charters  the  legislature  may  certainly  accomplish  this 
by  direct  repeal  of  specified  charter  provisions.  Why, 
then,  may  not  the  legislature  vest  in  the  local  author- 
ities of  a  city  the  power  to  repeal  designated  provisions 

8  Laws  of  New  York,  1914,  ch.  444. 

•  Opinion  of  the  Attorney  General  of  New  York,  January  11,  1916. 


LEGISLATIVE  HOME  RULE  II 

of  the  charter  under  which  the  city  is  at  the  time  oper- 
ating? "It  makes  no  difference,"  says  the  attorney 
general  of  New  York,  "whether  they  [city  charters] 
contain  provisions  which  the  legislature  might  in  the 
first  instance  have  delegated  the  power  to  enact  to  the 
local  council.  The  answer  to  that  is  the  legislature  did 
not  delegate  the  power  in  the  existing  charter,  but  made 
its  own  special  provisions."  If  one  regards  the  sub- 
stance of  things,  this  argument  is  certainly  somewhat 
attenuated.  It  amounts  to  this — that  having  occupied 
a  particular  field  through  the  medium  of  a  charter  pro- 
vision, the  legislature  cannot  thereafter  retire  from  that 
field  by  delegating  to  the  local  authorities  power  which 
it  might  in  the  first  instance  have  delegated  with  im- 
punity. 

Of  course  it  is  clear  that  the  corporate  authorities  of 
a  city  would  never  be  vested  with  power  to  repeal  a 
charter  in  toto.  Only  a  partial  power  would  be  con- 
ferred. Otherwise,  since  whatever  the  corporate  au- 
thorities enact  is  in  the  nature  of  ordinance,  and  there- 
fore subordinate,  the  distinction  between  the  charter 
and  the  ordinances  of  the  city  would  be  completely  de- 
stroyed. Something  of  the  charter  enacted  by  the 
legislature  would  have  to  remain,  even  though  it  were 
nothing  more  than  the  provisions  creating  those  cor- 
porate authorities  who  were  empowered  to  repeal  the 
rest  of  the  charter,  and  thus  reduce  its  provisions  to  the 
status  of  local  ordinances.  State  constitutions  occasion- 
ally contain  regulations  that  are  expressly  made  subject 
to  alteration  by  the  legislature.  When  the  legislature 
acts  under  an  authority  of  this  kind  it  does  not,  strictly 
speaking,  amend  the  constitution ;  it  merely  transforms 


12  CITY  PROGRESS  AND  THE  LAW 

a  subject  of  constitutional  regulation  into  one  of  statu- 
tory regulation.  But  if  the  legislature  were  empowered 
to  do  this  with  coery  provision  of  the  constitution,  there 
would  no  longer  be  any  distinction  between  the  consti- 
tution and  the  statutes  of  the  state.  And  so  it  would 
be  in  respect  to  the  alteration  of  charters  by  action  of 
the  corporate  authorities. 

Over  against  the  few  opinions  of  record  in  which  it 
has  been  denied  that  the  legislature  is  competent  to 
authorize  the  local  authorities  to  transform  specified 
provisions  of  a  charter  into  ordinances,  may  be  set 
many  important  instances  in  which  the  legislature  has 
actually  exercised  this  competence  without  any  result- 
ing judicial  controversy.  If,  for  example,  this  rule  of 
law  is  sound,  then  numerous  provisions  of  the  present 
building  code  of  the  city  of  New  York  are  void ;  for  the 
charter  which  created  Greater  New  York  in  1897  ex- 
pressly provided  that  upon  the  enactment  of  a  building 
code  by  the  municipal  assembly  (now  the  board  of  alder- 
men) all  statutes  relating  to  buildings  should  be  re- 
pealed; but  "such  repeal,"  declared  the  charter,  "shall 
not  take  effect  until  such  'building  code'  shall  be  es- 
tablished." ^°  Many  other  provisions  of  this  charter 
were  made  subject  to  transformation  into  local  ordi- 
nances. ^^  Moreover,  when  the  charter  of  the  city  was 
fundamentally  revised  and  re-enacted  in  1901,  no  less 
than  fifty-six  sections  were  expressly  scheduled  as  "sec- 
tions to  remain  in  force  until  changed  by  the  board  of 
aldermen."  ^^    go,  also,  when  the  charter  of  the  city  of 

^°Laws  of  New  York,  1897,  III,  sec.  647. 

^^  Salaries,  for  example,  could  be  fixed  by  ordinance  "irrespective  of  the 
amount  fixed  by  this  act."    Ibid.,  sec.  36. 
^2  Laws  of  New  York,  1901,  III,  p.  663. 


LEGISLATIVE  HOME  RULE  13 

Boston  was  remodeled  in  1909,  the  mayor  and  city 
council  were  vested  with  far-reaching  power,  subject  to 
certain  specified  exceptions,  to  reorganize  the  adminis- 
trative departments  of  the  government,  and  to  redis- 
tribute powers  regardless  of  unrepealed  provisions  of 
the  existing  charter.  ^^ 

Instances  might  be  multiplied,  but  these  are  doubtless 
sufficient.  If  there  exists  in  the  body  of  our  constitu- 
tional law  a  rule  that  the  corporate  authorities  of  cities 
may  not  be  granted  the  power  to  reduce  specific  provis- 
ions of  a  municipal  charter  to  the  grade  of  ordinances,  it 
is  passing  strange  that  this  rule  has  escaped  attention 
in  the  important  instances  mentioned.  The  only  ex- 
planation is  that  it  has  been  applied  in  too  few  cases 
and  rests  upon  too  insecure  a  foundation  in  reason  to 
warrant  the  assertion  that  it  is  an  established  rule  of 
law. 

There  is  probably  no  doubt  that,  with  the  legislative 
practice  in  this  regard  fairly  established,  a  considerable 
measure  of  home  rule  could  be  granted  to  cities  by  vest- 
ing in  their  corporate  authorities  the  power  to  regulate 
by  ordinance  certain  matters  that  are  now  regulated  by 
charter  provision.  This  would  undoubtedly  be  a  means 
of  simplifying  some  of  our  overgrown  city  charters. 
But  if  this  policy  were  adopted  only  upon  a  niggardly 
scale,  it  would  scarcely  satisfy  the  reasonable  demands 
for  municipal  home  rule.  If,  on  the  other  hand,  it  were 
adopted  upon  an  extensive  scale,  it  would  run  counter 
to  the  prevailing  notion  that  the  corporate  authorities 
of  a  city  ought  to  be  held  in  the  leash  of  a  fair-sized 
fundamental  law.     As  has  been  said,  home  rule  for 

"  Acts  and  Resolves  of  Massachusetts,  1909,  ch.  486,  sec.  5. 


14  CITY  PROGRESS  AND  THE  LAW 

cities  does  not  necessarily  imply  that  large  unrestricted 
power  shall  be  placed  in  the  hands  of  a  few  corporate 
officers.  Many  earnest  advocates  of  the  principle  of 
home  rule  would  hesitate  to  urge  that  the  charter  of  a 
sizeable  city  be  decreased  to  a  document  of  a  few  pages, 
and  that  enormous  powers  be  vested  in  the  few  author- 
ities established  by  this  greatly  abbreviated  funda- 
mental law. 

It  is  nevertheless  true  that,  so  far  as  the  practice  of 
our  legislatures  is  concerned,  the  corporate  authorities 
of  cities  have  not  infrequently  been  vested  with  power 
to  transform  specified  charter  provisions  into  ordi- 
nances subject  to  their  control;  and  not  only  has  the 
competence  of  the  legislature  to  delegate  such  power 
been  seldom  questioned  but  it  can  also  be  supported  by 
considerable  force  of  logic.  Strictly  speaking,  this  prac- 
tice cannot  be  referred  to  as  a  delegation  of  the  charter- 
making  authority;  it  is  rather  the  delegation  of  power 
to  unmake  parts  of  the  charter.  The  practice  is,  how- 
ever, of  obvious  interest,  even  though  not  of  controlling 
influence,  in  any  consideration  of  the  competence  of 
the  legislature  to  delegate  the  charter-making  power 
to  cities. 

The  reference  of  charters  to  the  electors 

It  is  a  well-known  fact  that  in  numerous  instances 
legislatures  have  submitted  laws  for  approval  or  re- 
jection by  the  voters.  Such  laws  have  sometimes  been 
submitted  to  the  voters  of  the  entire  state  and  some- 
times to  the  voters  of  local  units,  such  as  counties, 
towns,  and  cities.  Many  of  these  laws  have  been  con- 
tested before  the  courts  upon  the  ground  that,  in  pro- 


LEGISLATIVE  HOME  RULE  15 

viding  that  a  law  shall  depend  for  its  existence  or 
enforcement  upon  the  will  of  the  voters  as  expressed  at 
the  polls,  the  legislature  in  effect  delegated  its  own 
power  of  legislation.  Without  attempting  to  make  any- 
thing like  a  complete  examination  of  all  the  intricacies 
involved  in  this  proposition,  it  seems  obvious  that  the 
competence  of  the  legislature  to  refer  to  the  local  voters 
at  least  certain  kinds  of  laws  can  be  readily  sustained. 
For  example,  it  is  universally  conceded  that  the  power 
to  prohibit  or  regulate  the  sale  of  intoxicating  liquors, 
or  to  levy  a  tax  or  issue  bonds  for  a  local  public 
improvement  can  be  delegated  to  the  corporate  author- 
ities of  cities,  to  be  exercised  by  ordinance.  But  since 
these  authorities  are  merely  the  agents  of  the  local 
voters,  surely  there  can  be  no  logical  reason  why  the 
power  to  accept  or  reject  a  liquor  law  or  financial  law 
may  not  be  delegated  directly  to  the  local  voters.  It  is 
simply  a  fact  that  the  reference  of  such  laws  to  the 
local  voters  has  been  almost  universally  upheld,  al- 
though it  ought  to  be  said  that  not  all  of  the  courts 
have  relied  solely  upon  the  line  of  argument  thus 
indicated. 

There  is,  however,  another  class  of  laws  which  the 
courts  have  permitted  the  legislature  to  refer  to  the 
local  voters  for  acceptance  or  rejection.  These  are 
municipal  charters  and  charter  amendments.  Almost 
from  the  beginning  of  our  history  as  a  nation,  legisla- 
tures have  on  occasion  allowed  municipal  voters  to 
ratify  or  reject  charters  and  similar  laws  affecting  them. 
This  practice  has  been  far  more  prevalent  in  some  states 
than  in  others,  and  although  it  has  been  far  from  uni- 
form in  any  state — has,  indeed,  been  far  more  excep- 


i6  CITY  PROGRESS  AND  THE  LAW 

tional  than  otherwise — ^it  has,  nevertheless,  had  a  con- 
siderable vogue. 

Most  of  the  diverse  arguments  that  have  been  put 
forward  by  the  courts  in  support  of  referenda  on  char- 
ters and  analogous  laws  have  been  directed  to  showing 
that  in  voting  for  or  against  such  a  law,  the  voters  do 
not  in  fact  participate  in  the  making  of  the  law  and 
do  not,  therefore,  exercise  legislative  power.  It  seems 
wholly  unnecessary  to  attempt  an  analysis  of  all  of  the 
arguments  that  have  been  employed  to  this  end. 
Perhaps  the  principal  of  these  has  been  that  in  accept- 
ing or  rejecting  a  charter  or  similar  law,  the  voters  do 
not  act  as  legislators  but  as  corporators.  Their  action, 
say  the  courts,  is  precisely  the  same  as  the  action  of  a 
group  of  natural  persons  who  accept  or  reject  articles 
of  incorporation  for  the  carrying  on  of  some  private 
undertaking.  From  the  historical  point  of  view  there 
is  something  of  force  in  this  argument.  From  the  mod- 
em point  of  view  it  is  manifestly  the  thinnest  sort  of 
fiction.  The  charter  of  a  private  corporation  is  a  con- 
tract between  the  state  and  the  incorporators.  No 
group  of  private  persons  can  be  compelled  to  incorpor- 
ate, and,  once  being  incorporated,  the  obligation  of 
their  contract  with  the  state  cannot  be  impaired  by 
subsequent  legislation.  The  charter  of  a  municipal 
corporation  is  not  a  contract  between  the  state  and  the 
voters  of  the  city.  Such  a  charter  can  be  forced  upon 
the  community  against  its  will,  and,  once  in  operation,  it 
can  be  'Violated"  by  the  legislature  without  the  slightest 
regard  for  the  wishes  of  the  people  of  the  locality.  It  is 
impossible  to  follow  with  conviction  a  line  of  argument 
which  asserts,  on  the  one  hand,  that  the  legislature  may 


LEGISLATIVE  HOME  RULE  17 

allow  the  voters  of  a  city  to  accept  or  reject  a  municipal 
charter  for  the  same  reason  that  it  may  allow  persons 
to  accept  or  reject  a  private  charter  of  incorporation; 
but  that,  on  the  other  hand,  the  legislature  may  compel 
the  acceptance  of  a  municipal  charter  for  the  reason 
that  such  a  charter  lacks  the  most  essential  element  of 
a  private  charter;  namely,  its  contractual  character. 
In  view  of  the  mandatory  character  of  most  of  the  laws 
regulating  the  governments  of  modem  American  cities, 
the  average  voter  would  doubtless  be  surprised  indeed 
to  discover  that  he  has  any  capacity  as  a  corporator  of 
the  city.  As  a  citizen,  as  a  voter,  as  a  taxpayer,  as  a 
person,  he  of  course  has  rights  which  he  may  defend 
before  the  courts  under  the  guaranties  of  the  funda- 
mental laws  of  the  state  and  nation.  As  a  corporator 
of  the  city  in  which  he  lives,  he  obviously  has  no  such 
rights. 

It  would  certainly  assist  in  clearing  the  legal  atmos- 
phere which  surrounds  this  subject  if  the  courts  would 
frankly  abandon  this  fiction  of  the  law  based  upon  the 
analogy  between  the  acceptance  of  a  municipal  charter 
and  the  acceptance  of  a  private  charter.  Because  of  its 
local  and  special  application  a  law  for  the  governance 
of  a  city  is  none  the  less  a  law  enacted  hy  the  entire 
state.  It  is  the  mandate  of  a  superior  to  an  inferior; 
and  when  that  superior  permits  the  inferior  to  declare, 
through  the  medium  of  ballots  cast  at  the  polls,  that 
such  proposed  law  shall  or  shall  not  be  the  law  (or,  what 
is  substantially  the  same,  that  it  shall  or  shall  not  be 
enforced),  there  seems  to  be  no  question  that  the  local 
voters  do  in  fact  participate  in  the  making  of  the  law 
and  therefore  exercise  legislative  power.    Their  act  is  as 


I8  CITY  PROGRESS  AND  THE  LAW 

truly  legislative  as  the  act  of  an  individual  legislator 
when  he  votes  upon  a  bill  in  its  final  form.  It  is  as 
truly  legislative  as  the  act  of  the  governor  when  he 
approves  or  vetoes  a  bill  that  is  submitted  to  him.  It 
seems  impossible  to  escape  this  conclusion;  for  it  is 
perfectly  apparent  that  without  the  approval  of  a 
majority  of  the  voters  who  go  to  the  polls,  the  charter 
law  is  as  ineffective,  as  utterly  nugatory,  as  if  it  had 
never  been  enacted  by  the  legislature.^* 

If  the  courts  would  only  concede,  then,  as  it  would 
seem  they  ought  to  concede,  that  the  vote  of  the  local 
electors  upon  a  charter  or  similar  law  is  an  act  of  legis- 
lation, a  long  step  would  be  taken  in  the  direction  of 
sustaining  the  competence  of  the  legislature  to  grant 
the  charter-making  power  to  cities.  It  would  not  be 
necessary  to  declare  that  the  legislature  could  not  sub- 
mit such  laws  to  the  voters.  The  general  rule  against 
the  delegation  of  legislative  power  is  not  an  express 
prescription  of  the  constitution ;  it  is  derived  merely  by 
implication  from  the  clause  which  asserts  that  the  legis- 
lative power  of  the  state  shall  be  vested  in  the  legisla- 
ture.   The  courts  might  easily  declare  that  this  clause 

1*  In  a  recent  case  before  the  New  York  court  of  appeals  it  was  declared 
that  "no  court  has  ever  held  that  the  legislature  could  delegate  to  popular 
vote  the  right  to  .  .  .  repeal  a  statute."  People  ex  rel.  Unger  v. 
Kennedy,  207  N.  Y.  533  (1913).  But  in  this  case  it  was  held  that  the  law 
creating  Bronx  county  out  of  a  portion  of  New  York  county  did  not  in  fact 
delegate  such  power  to  the  voters. 

With  due  respect  for  the  high  source  of  this  rule  of  law,  it  is  nevertheless 
a  fact  that  most  of  the  laws  that  are  submitted  to  popular  votes  operate  to 
repeal  other  laws.  The  acceptance  of  a  new  charter  by  the  voters  of  a  city 
obviously  repeals  the  old  charter  in  whole  or  in  part.  Moreover,  if  the  legis- 
lature is  competent  to  permit  the  local  voters  to  accept  or  reject  a  charter 
or  any  other  law,  it  is  difficult  to  see  why  the  legislature  is,  after  accept- 
ance, powerless  to  permit  a  subsequent  rejection  in  the  form  of  a  repeal  of 
such  law. 


LEGISLATIVE  HOME  RULE  19 

was  intended  only  to  establish  the  principle  of  the  sep- 
aration of  powers — to  prevent  the  delegation  of  legis- 
lative power  to  the  courts  or  to  the  executive  branch  of 
the  government — and  that  in  consequence  it  did  not 
of  necessity  prohibit  the  legislature  from  delegating 
legislative  power  to  the  voters.  This  would  require  no 
violent  twisting  of  the  terms  of  the  fundamental  law  of 
the  state.  Courts  have  not  infrequently  refused  to 
apply  far  more  palpable  implications  than  the  one  here 
under  consideration.  If  the  courts  would  take  this 
stand,  the  competence  of  the  legislature  to  submit 
charters  to  the  voters  could  be  sustained  just  as  it  has 
been  sustained.  The  only  difference  would  be  that  this 
competence  would  be  rested  upon  a  new,  and,  it  would 
seem,  a  more  substantial,  foundation. 

The  delegation  of  charter-making  power  to  the 
corporate  authorities  and  the  electors 

We  are  in  search  of  a  line  of  consistent  legal  reasoning 
that  will  sustain  the  authority  of  the  legislature  to  del- 
egate to  cities  the  power  to  make  their  own  charters 
within  such  general  scope  and  subject  to  such  general 
limitations  as  the  legislature  may  set.  The  preserva- 
tion of  the  distinction  between  that  which  is  charter 
and  that  which  is  ordinance  is  admittedly  desirable. 
But  this  distinction  is  not  always  founded  upon  a  dif- 
ference in  respect  to  subject  matter,  upon  a  conscious 
and  consistent  attempt  to  separate  what  may  be  re- 
garded as  fundamental  from  that  which  may  not  be  so 
regarded.  It  rests  solely  upon  a  difference  in  the  enact- 
ing authority.  What  the  legislature  enacts  is  charter, 
no  matter  how  trivicd  may  be  its  subject.    What  the 


20  CITY  PROGRESS  AND  THE  LAW 

municipal  authorities  enact  is  ordinance,  no  matter  how 
high  and  important  its  subject.  Both  are  acts  of  legis- 
lation. In  respect  to  the  former,  we  have  seen  that  the 
power  to  reduce  designated  charter  provisions  to  the 
status  of  ordinances  has  in  practice  been  delegated  to 
the  corporate  authorities  of  cities,  although  a  few  opin- 
ions have  denied  the  power  of  the  legislature  to  make 
such  a  delegation.  We  have  seen  also  that  the  compe- 
tence of  the  legislature  to  submit  a  proposed  charter  or 
analogous  law  to  the  voters  of  a  city  has  been  univer- 
sally sustained.  Why,  then,  may  not  the  legislature 
divest  itself  completely  of  the  power  of  enacting  munici- 
pal charters  and  vest  such  power  in  the  local  corporate 
authorities  and  the  local  electors  acting  in  combi- 
nation? If  the  legislature  can  devolve  a  portion  of 
its  power  in  this  regard,  why  can  it  not  devolve  the 
whole  of  it? 

As  has  been  noted,  the  corporate  authorities  should 
not  be  vested  with  complete  charter-making  compe- 
tence; for  since  what  they  enact  is  in  the  nature  of 
ordinance,  the  distinction  between  the  charter  and  the 
ordinances  of  the  city  would  thereby  be  destroyed.  On 
the  other  hand,  the  voters  cannot  act  in  the  matter  of 
charter-making  except  through  some  prescribed  ma- 
chinery; and  any  machinery  that  might  be  devised,  ex- 
cept perhaps  a  machinery  of  initiative  and  referendum, 
would  probably  include  at  least  initiatory  action  by 
some  existing  or  specially  constituted  corporate  body. 
The  combination  of  proposal  by  such  a  body  and  rati- 
fication by  the  electors  would  preserve  the  distinction 
between  the  charter  and  the  ordinances.  What  the 
voters  acted  upon  in  the  prescribed  manner  would  be 


LEGISLATIVE  HOME  RULE  21 

charter — the  superior  law  of  the  city.  What  the  cor- 
porate authorities  alone  enacted  would  be,  as  at  present, 
ordinance. 

There  is  another  way  of  looking  at  this  matter.  In 
granting  the  charter-making  power  to  cities  it  is  not 
necessary  and  probably  not  desirable  that  the  legisla- 
ture should  prescribe  only  the  machinery  for  the  exer- 
cise of  the  power.  There  are  a  number  of  moot  ques- 
tions of  local  competence  that  ought  to  be  settled  by 
statute,  if  for  no  other  reason  because  the  city  should 
not  be  left  in  uncertainty  concerning  the  metes  and 
bounds  of  its  powers  in  respect  to  dubious  matters.  In 
Michigan  and  in  Texas  the  power  to  frame  their  own 
charters  is  delegated  to  cities  by  constitutional  pro- 
vision ;  but  the  legislature  may  determine  not  only  how 
this  power  shall  be  exercised  but  also  its  scope.  In 
each  of  these  states  the  legislature  has  enacted  a  some- 
what elaborate  "home  rule"  or  "enabling"  act.^^  If 
such  a  law  were  enacted  in  a  state  containing  no  consti- 
tutional provision  on  this  subject,  there  seems  to  be  no 
reason  why  this  law  might  not  itself  be  regarded  as  the 
fundamental  law  of  every  city.  Such  it  would  be  in 
fact,  no  matter  what  it  might  be  called.  It  would  not 
do,  perhaps,  to  call  it  the  charter  of  the  city;  for  this 
would  only  result  in  a  confusion  of  terms,  and  it  is 
doubtless  desirable  to  retain  the  term  charter  as  de- 
scriptive of  the  instrument  which  actually  provides  the 
organization  of  the  local  government.  It  might  readily 
be  argued,  however,  that  in  enacting  such  a  law  the 
legislature  had  exercised  all  the  legislative  power  neces- 

"  Public  Acts  of  Michigan,  1909,  no.  279;  General  Laws  of  Texas,  1913, 
ch.  147. 


22  CITY  PROGRESS  AND  THE  LAW 

sary  for  the  creation  and  regulation  of  municipal  cor- 
porations; that  it  had  merely  delegated  a  larger  degree 
of  local  legislative  power  than  has  been  customary; 
and  that  it  had  provided  for  the  division  of  the  power 
so  delegated  into  two  parts — namely,  the  power  of 
charter-making,  in  which  the  voters  should  partici- 
pate, and  the  power  of  enacting  ordinances,  which 
should  be  regulated  by  the  provisions  of  the  locally 
made  charter. 

The  difficulty  of  following  this  argument,  if  any  there 
be,  arises  almost  wholly  from  the  use  of  old  terms  to 
describe  a  somewhat  new  statutory  situation.  If  the 
home  rule  act  passed  by  the  legislature  were  called  the 
charter  of  the  city,  if  the  charter  ratified  by  the  voters 
were  called — let  us  say — the  "fundamental  ordinance" 
of  the  city,  and  if  the  ordinances  enacted  by  the  corpor- 
ate authorities  were  called  by  some  appropriate  term  to 
indicate  their  inferiority,  the  difficulty  of  sustaining  the 
constitutionality  of  such  a  legislative  act,  so  far  at 
least  as  nomenclature  is  concerned,  would  be  largely, 
if  not  entirely,  overcome. 

Legislative  grants  of  home  rule 

There  remains,  in  conclusion,  only  to  mention  the  few 
instances  in  which  legislatures  have,  without  express 
constitutional  sanction,  attempted  to  delegate  to  cities 
a  more  or  less  complete  charter-making  power.  In  the 
year  1828  a  charter  proposed  by  the  state  legislature  for 
the  city  of  New  York  was  submitted  to  a  local  refe- 
rendum and  was  defeated  at  the  polls.  ^^  Thereafter  the 
corporate  authorities  of  the  city,  without  any  express 

^^  Laws  of  New  York,  1828,  First  Sess.,  ch.  249. 


LEGISLATIVE  HOME  RULE  23 

sanction  of  law,  provided  for  the  election  of  members  of 
a  municipal  convention  which  should  draft  a  charter 
for  the  city.  In  1829  this  convention  assembled  and 
framed  a  charter  which  was  submitted  to  and  approved 
by  the  voters.  At  its  next  session,  the  legislature 
enacted  this  charter  without  amendment.  ^^  In  1846  the 
legislature  itself  made  provision  for  the  election  of 
members  of  a  similar  municipal  convention  to  revise  the 
charter  of  New  York  City.^^  The  charter  that  was 
drafted  by  this  convention  was  defeated  at  the  polls; 
but  shortly  afterward  a  charter  proposed  by  the  board 
of  aldermen  of  the  city  was  enacted  by  the  legislature, 
submitted  to  the  electors,  and  by  them  approved. ^^  In 
Brooklyn  also  a  charter  convention  came  together  in 
July,  1847,  under  the  sanction  of  a  legislative  enact- 
ment.20  The  labors  of  this  convention  were  not  com- 
pleted until  the  beginning  of  the  year  1849,  when  a 
proposed  charter  was,  as  required  by  law,  "printed  for 
distribution  among  the  inhabitants  of  said  city."  This 
charter  was  enacted  by  the  legislature  but  was  made 
subject  to  approval  by  the  voters. ^^ 

These  are  early  instances  in  which  the  propriety  of 
permitting  localities  to  draft  their  own  charters  was 
recognized  apparently  without  hesitation.  Certain  re- 
cent instances  of  a  similar  character  may  also  be  noted. 
By  a  law  of  Oregon  enacted  in  1901  twenty- three 
designated  voters  of  the  city  of  Portland  were  em- 
powered to  draft  a  charter  which  should  be  approved 

^^  Laws  of  New  York,  1830,  ch.  122. 

^^  Laws  of  New  York,  1846,  ch.  172. 

^^  Laws  of  New  York,  1849,  ch.  187. 

2°  Stiles,  History  of  Brooklyn,  II,  p,  279;  Laws  of  New  York,  1847,  ch.  246. 

2^  Laws  of  New  York,  1849,  ch.  47. 


24  CITY  PROGRESS  AND  THE  LAW 

by  the  voters  and  subsequently  submitted  to  the  legis- 
lature "for  its  approval  or  rejection  as  a  whole,  without 
power  of  alteration  or  amendment.  "^^  So  also  a  statute 
of  Virginia  enacted  in  19 14  authorizes  cities  of  more 
than  100,000  inhabitants  (Richmond)  to  propose  new 
charters  to  the  legislature,  the  procedure  for  proposal 
being  that  such  charters  should  be  enacted  by  ordinance 
and  submitted  to  a  vote  of  the  people.^^  In  191 5  a 
law  of  the  same  state  authorized  fifteen  per  cent,  of  the 
electors  in  cities  having  a  population  of  from  75,000  to 
100,000  inhabitants  (Norfolk)  to  petition  for  the  elec- 
tion of  a  charter  commission.  The  charter  drafted  by 
this  commission  should,  upon  approval  by  the  voters, 
"constitute  a  request  to  the  general  assembly  to  grant 
the  said  special  charter  or  form  of  government  provided 
for  therein.  "24 

So  far  as  legal  principles  are  concerned,  It  is  mani- 
festly important  to  note  that  each  of  the  instances  just 
mentioned  involved  or  involves  direct  action  upon  the 
charters  in  question  by  the  legislature  itself.  From  the 
viewpoint  of  political  psychology  it  is  nevertheless 
apparent  that  a  legislature  would  hesitate  to  amend  or 

"  General  Laws  of  Oregon,  1901,  p.  296.  It  is  questionable,  of  course, 
whether  the  legislature  of  1901  could  bind  the  legislature  of  1903  to  approve 
or  reject  the  charter  without  power  of  amendment. 

^  Acts  of  Assembly  of  Virginia,  1914,  p.  81.  This  act  was  amended  in 
19 1 6  so  as  to  provide  for  the  drafting  of  the  charter  by  an  elected  commis- 
sion; ibid,  1916,  p.  116.  A  constitutional  amendment  (sec.  117),  adopted 
in  19 1 2,  authorized  the  legislature  to  "grant  a  special  form  of  govern- 
ment," "ai  the  request,  made  in  manner  which  m^y  be  prescribed  by  law,  of 
any  city  having  a  population  of  over  50,000  inhabitants."  Obviously  the 
legislature  of  any  state  would  enjoy  such  power  without  constitutional 
sanction  unless  prohibited  by  a  requirement  of  general  legislation  for 
cities. 

2^  Acts  of  Assembly  of  Virginia,  Ex.  Sess.,  1915,  p.  Sod;  revised  and  re- 
enacted  as  applicable  to  cities  of  from  65,000  to  100,000;  ibid.,  1916,  p.  62. 


LEGISLATIVE  HOME  RULE  25 

to  refuse  to  enact  a  charter  which  had  been  approved 
by  the  voters  of  a  city.^^ 

It  is  interesting  in  this  connection  to  note  that  the 
New  York  municipal  convention  of  1846  regarded  the 
legislative  ratification  as  of  so  little  importance  that 
they  incorporated  into  the  charter  which  they  drafted 
and  which  was  defeated  at  the  polls  a  provision  for  the 
future  amendment  of  that  charter  by  local  action 
without  legislative  approval. ^^ 

Of  very  much  greater  importance  than  the  instances 
just  mentioned  are  those  in  which  the  legislature  has 
delegated  to  cities  the  complete  power  of  charter- 
making  without  reserving  to  itself  the  right  of  subse- 
quent ratification.  Probably  the  earliest  instance  of 
this  was  found  in  an  Iowa  law  of  1858  which  conferred 
upon  existing  cities  the  power  to  amend  their  charters 
by  initiative  petition  and  referendum  vote.^^  Without 
considering  the  question  of  the  delegation  of  legislative 
power  this  law  was  enthusiastically  approved  by  the 
supreme  court  of  Iowa  ^^  and  still  remains  upon  the 
statute  books  as  applicable  to  cities  which  have  not 
voluntarily  adopted  the  general  charter  law.^^  So  also 
in  Mississippi  a  law  which  provides  for  the  amendment 

25  In  California  under  the  constitutional  provision  granting  home  rule 
to  cities  all  charters  and  charter  amendments  must,  after  local  drafting 
and  adoption,  be  submitted  to  the  legislature  for  approval.  In  the  entire 
history  of  home  rule  in  that  state  covering  the  enactment  of  numerous 
charters  and  amendments,  the  legislature  has  never  refused  its  approval. 
See  McBain,  The  Law  and  the  Practice  of  Municipal  Home  Rule,  pp.  218-220. 

^Journal  of  the  City  Convention,  1846,  p.  715. 

*' Laws  of  Iowa,  1858,  ch.  157,  sec.  iii. 

^Von  Phul  V.  Hammer,  29  la.  222  (1870);  Ex  parte  Pritz,  9  la.  30 
(1859);  Davis  &  Bro.  v.  Woolnough,  9  la.  104  (1859);  Hetherington  v. 
Bissell,  10  la.  145  (1859). 

2^  Iowa  Code  of  1897,  sec.  1047. 


26  CITY  PROGRESS  AND  THE  LAW 

of  city  charters  by  local  action  without  legislative  rati- 
fication has  been  approved  by  the  supreme  court  of 
the  state. ^°  The  supreme  court  of  Illinois  has  also  ex- 
pressed the  opinion,  arguendo,  that  the  legislature  might 
provide  for  the  incorporation  and  alteration  of  the 
charters  of  cities  *'in  the  discretion  and  through  the 
agency  of  those  to  be  affected  ;"^^  but  the  legislature 
of  that  state  has  never  adopted  any  such  policy. 

In  Louisiana,  under  a  law  of  1886,  any  city  except  New 
Orleans  may  amend  its  own  charter  or  adopt  an  en- 
tirely new  charter  upon  a  petition  by  taxpayers  or 
property  owners  and  ratification  by  the  electors.  This 
law  appears  never  to  have  been  contested  before  the 
courts  and  probably  has  been  infrequently  used,  owing 
to  the  large  majorities  required  for  petitions. ^^  In 
South  Carolina  by  statutory  allowance  amendments  to 
any  special  charter  or  general  act  of  incorporation  may 
be  initiated  by  a  petition  of  the  majority  of  the  free- 
holders of  the  city  and  ratified  by  a  majority  vote  of 
the  electors.^^  This  law  also  seems  never  to  have  been 
contested  and  probably  for  the  same  reason  as  in 
Louisiana  has  seldom,  if  ever,  been  made  use  of.  In 
Florida  charter-making  power  has  been  extended  to 
certain  specific  cities  by  the  terms  of  somewhat  recently 

'°  Code  of  Mississippi,  1892,  sec.  3039;  amended  by  Laws  of  1900,  ch.  69; 
Code  of  1906,  sec.  3444;  sustained  in  Yazoo  City  v.  Lightcap,  82  Miss.,  148 
(1903).  The  procedure  provided  is  enactment  by  the  mayor  and  council, 
approval  by  the  governor  and  attorney  general,  and  ratification  by  the  elec- 
tors only  in  the  event  of  a  protest  filed  by  one-tenth  of  the  voters.  In 
possible  support  of  such  a  law  was  the  phraseology  of  section  88  of  the 
Mississippi  constitution  of  1890. 

31  People  ex  rel.  Miller  v.  Cooper,  83  111.  S85  (1876). 

32  Acts  of  Louisiana.  1886,  p.  138;   ibid.,  1896,   p.  190. 

33  Acts  of  South  Carolina,  1899,  p.  70. 


LEGISLATIVE  HOME  RULE  27 

enacted  special  charters  ;3*  and  although  the  power  thus 
conferred  has  certainly  been  exercised  by  Florida  cities 
in  some  instances,  it  has  apparently  not  been  con- 
tested before  the  courts.  Within  the  last  few  years 
the  legislature  of  Connecticut  has  granted  the  charter- 
making  power  to  one  or  two  cities.  Thus  by  a  law  of 
19 1 3  the  city  of  New  Haven  is  authorized  to  amend  its 
charter  by  initiation  of  the  board  of  aldermen  or  a 
voters'  petition  and  subsequent  ratification  at  the  polls.^^ 
A  similar  law  was  enacted  for  Waterbury  in  1915.^^ 
It  remains  to  be  seen  whether  the  Connecticut  courts 
will  sustain  such  delegations  of  power  if  any  judicial  con- 
test is  raised  over  an  attempted  exercise. 

It  appears,  therefore,  from  the  above  review,  that 
laws  granting  the  charter-making  power  to  one  or  more 
cities  are  found  in  the  statute  books  of  at  least  six  states 
— Iowa,  Mississippi,  Louisiana,  South  Carolina,  Florida, 
and  Connecticut.  In  two  of  these,  Iowa  and  Mississippi, 
such  laws  have  been  expressly  upheld  by  the  courts.  In 
none  of  them  does  the  constitution  specifically  author- 
ize the  delegation  of  the  charter-making  power. 

On  the  other  hand,  laws  of  the  kind  here  under  con- 
sideration have  been  held  void  in  at  least  two  jurisdic- 
tions. In  Michigan,  before  the  grant  of  home  rule  by 
the  constitution  of  1908,  a  law  was  declared  void  which 
provided  for  amending  the  charter  of  Detroit  by  the 
proposal  of  the  mayor  and  council  or  of  500  petitioners 
and  subsequent  ratification  by  the  electors.  In  the 
opinion  of  the  court  this  was  an  unconstitutional  del- 

**  See,  for  example,  the  charter  of  Gainesville;  Laws  of  Florida,  igoTi 
p.  399- 

25  Special  Laws  of  Connecticut,  1913,  p.  817;  amended,  ibid.,  1915.  P-  33S« 
3'^  Ibid.,  1915.  P-  439- 


28  CITY  PROGRESS  AND  THE  LAW 

egation  of  legislative  power.^^  So,  also,  a  recent  Wis- 
consin law  was  held  invalid  which  conferred  upon  cities 
the  power  to  amend  their  charters  by  action  of  the  cor- 
porate authorities  and  approval  by  the  voters  or  by 
initiative  petition  and  like  approval,  and  which  con- 
ferred also  the  power  of  enacting  a  new  charter  to  be 
drafted  by  an  elected  municipal  convention  and  ratified 
by  popular  vote.^^  In  the  opinion  of  the  court  the 
making  and  amending  of  charters  was  a  "legislative 
function  at  common  law;"  moreover,  it  was  made 
exclusively  such  by  a  provision  of  the  Wisconsin  con- 
stitution which  commanded  the  legislature  "to  provide 
for  the  organization  of  cities.  "^^ 

It  ought  to  be  said  that  in  none  of  the  cases  involving 
a  question  of  the  delegation  of  charter-making  power 
to  cities  has  this  question  been  considered  in  the  light 
of  the  universally  approved  rule  that  charters  and 
charter  amendments  may  be  submitted  for  approval  or 
rejection  by  the  local  voters,  nor  in  the  light  of  the 
fact  that  the  power  to  reduce  charter  provisions  to  the 
status  of  ordinances  has  been  frequently  conferred  upon 

"  Elliott  V.  City  of  Detroit,  121  Mich.  611  (1899)- 

''  Laws  of  Wisconsin,  191 1,  ch.  476;  State  ex  rel.  Mueller  v.  Thompson, 
149  Wis.  488  (1912). 

'^  The  supreme  court  of  Vermont  recently  held  void  an  act  which  con- 
ferred upon  the  Public  Service  Commission  power  to  incorporate  villages 
(determining  their  powers  and  form  of  government)  and  to  amend  city  and 
village  charters  on  petition.  Opinion  of  Justices,  86  Atl.  307  (1913)-  So 
also  the  West  Vu-ginia  court  held  that  the  legislature  could  not  vest  in  the 
circuit  court  the  power  to  amend  the  special  charters  of  cities  of  more 
than  2000  inhabitants.     St.  Marys  v.  Woods,  67  W.  Va.  no  (1910). 

Neither  of  these  opinions  is  directly  in  point  with  our  discussion  of  home 
rule.  They  involved  the  question  of  the  delegation  of  legislative  power  to 
state  administrative  and  judicial  officers  respectively. 


LEGISLATIVE  HOME  RULE  29 

the  corporate  authorities  of  cities.  Indeed,  it  must  be 
admitted  that  the  entire  line  of  reasoning  pursued  in  this 
discussion  has  been  based  not  so  much  upon  the  law  as 
it  is  as  upon  the  law  as  it  might  and  perhaps  ought  to  be. 
If  the  law  as  it  is  were  clear,  consistent,  and  firmly  es- 
tablished, there  would  perhaps  be  little  justification  for 
urging  a  new  point  of  legal  attack  and  pursuit.  But  in 
plain  point  of  fact  the  law  upon  this  subject  enjoys 
none  of  these  characteristics.  It  stands  in  bewildering 
uncertainty,  while  cities  are  clamoring  for  home  rule. 
It  may  well  be  that  home  rule  by  legislative  grant  will 
in  the  long  run  prove  more  satisfactory  than  home  rule 
by  constitutional  grant.  Would  it  not  be  regrettable, 
therefore,  if  the  rule  against  the  delegation  of  legislative 
power,  with  all  of  its  numerous  ramifications  and  incon- 
sistencies, should  be  allowed  to  stand  in  the  way  of  any 
legislative  attempt  to  work  out  an  adequate  scheme  of 
relations  between  the  city  as  such  and  the  state  of 
which  it  is  a  part? 


CHAPTER  II 

BREAKING    DOWN    THE    RULE    OF    STRICT 
CONSTRUCTION  OF  MUNICIPAL  POWERS 

It  has  been  pointed  out  that  In  the  usual  modem 
charter  the  grant  of  powers  to  municipal  corporations  is 
made  with  great  specification,  and  that  powers  are 
commonly  granted  not  to  the  city  as  such  but  to  desig- 
nated corporate  authorities  of  the  city.  We  come  now 
to  consider  the  attitude  which  the  courts  have  taken  in 
construing  the  powers  thus  granted  Judge  Dillon, 
the  best-known  commentator  upon  the  law  of  municipal 
corporations,  has  expressed  as  follows  the  general 
rules  or  canons  of  construction  which  the  courts 
apply  :i 

It  is  a  general  and  undisputed  proposition  of  law  that  a  municipal 
corporation  possesses  and  can  exercise  the  following  powers  and  no 
others:  first,  those  granted  in  express  words;  second,  those  neces- 
sarily or  fairly  implied  in  or  incident  to  the  powers  expressly  granted; 
third,  those  essential  to  the  accomplishment  of  the  declared  objects 
and  purposes  of  the  corporation — not  simply  convenient,  but  indis- 
pensable. Any  fair,  reasonable,  substantial  doubt  concerning  the 
existence  of  a  power  is  resolved  by  the  courts  against  the  corpora- 
tion, and  the  power  is  denied. 

^^  These  principles''  he  adds,  ^^are  of  transcendent  im- 
portance and  lie  at  the  foundation  of  the  law  of  municipal 
corporations y  The  rules  thus  set  forth  were  expressed 
in  effect  by  many  courts  prior  to  their  formulation  by 

1  Dillon,  Municipal  Corporations,  5th  ed.,  I,  sec.  237. 


THE  RULE  OF  STRICT  CONSTRUCTION  31 

Judge  Dillon,  and  they  have  been  repeated  down  to 
the  present  day  in  countless  cases  involving  questions 
concerning  the  competence  of  a  city  to  exercise  this  or 
that  specific  power.  Of  course  like  any  other  general 
rule  of  law  these  rules  give  the  opportunity  for  some 
latitude  in  application.  It  is  easy  enough  to  say  that 
there  must  be  fair  implication  that  a  certain  power 
has  been  granted  by  the  charter;  but  judges  will 
naturally  differ  in  opinion  as  to  what  is  and  is  not  a  fair 
implication.  They  will  differ  also  as  to  whether  a  par- 
ticular power  is  indispensable  to  the  declared  objects 
and  purposes  of  a  municipal  corporation.  At  best, 
however,  it  is  obvious  that  these  canons  of  construction 
are  expressed  in  terms  calculated  to  defeat  anything 
like  a  free  and  easy  exercise  of  the  powers  granted  to 
cities.  More  especially  is  this  the  case  in  view  of  the 
minuteness  with  which  the  powers  of  a  city  are  often 
enumerated. 

Loose  vs,  strict  construction  of  enumerated  powers 

At  first  blush  it  may  seem  far-fetched  to  contrast 
the  grant  of  powers  to  Congress  with  the  grant  of 
powers  to  municipal  corporations.  There  is,  however, 
something  of  reasonable  analogy  between  the  two. 
In  the  first  place,  although  the  national  government  is 
the  highest  governmental  unit  in  our  system  and 
municipal  governments  are  almost  the  lowest  units, 
they  are  nevertheless  both  governments  exercising 
specifically  enumerated  powers.  In  the  second  place, 
the  grant  of  powers  to  Congress  terminates  with  a 
general  grant  of  power  "to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution 


32  CITY  PROGRESS  AND  THE  LAW 

the  foregoing  powers."  Frequently  municipal  charters 
and  codes  follow  the  precedent  set  by  the  national 
constitution  in  this  respect.  Almost  identical  in 
phraseology,  for  example,  is  the  clause  of  the  Illinois 
general  municipal  code  which  declares  that  the  council 
shall  have  power  "to  pass  all  ordinances,  rules,  and 
make  all  regulations,  proper  or  necessary,  to  carry  into 
effect  the  powers  granted  to  cities  or  villages."  Some- 
times, indeed,  the  clauses  in  which  these  general  or 
supplementary  grants  of  power  are  made  are  appar- 
ently much  more  than  "necessary  and  proper"  clauses. 
For  example,  the  law  applicable  to  the  third  class  of 
cities  in  Pennsylvania,  after  an  elaborately  detailed 
statement  of  the  specific  powers  granted,  terminates 
with  a  grant  of  power  "to  make  all  such  ordinances, 
by-laws,  rules,  and  regulations  not  inconsistent  with 
the  constitution  and  laws  of  this  commonwealth  as  may 
be  expedient  or  necessary  in  addition  to  the  special 
powers  in  this  section  granted,  for  the  proper  manage- 
ment, care,  and  control  of  the  city  and  its  finances,  and 
the  maintenance  of  the  business,  good  government,  and 
welfare  of  the  city,  and  its  trade,  commerce,  and  manu- 
factures." Such  clauses  as  this,  commonly  known  as 
"general  welfare"  clauses^  seem  to  express  almost 
prodigal  liberality  toward  the  city  in  the  matter  of 
powers. 

Now  everybody  knows  how,  under  the  construction 
of  the  United  States  Supreme  Court,  the  "necessary 
and  proper"  clause  of  the  federal  constitution  has  been 
held  to  confer  upon  Congress  enormous  incidental 
powers.  It  is  very  nearly  true  to  say  that  Congress 
may  exercise  almost  any  power  that  is  remotely  or 


THE  RULE  OF  STRICT  CONSTRUCTION  33 

indirectly  conducive  to  the  effectuation  of  some  specific 
power  conferred.  No  other  single  canon  of  constitu- 
tional construction  has  had  so  far-reaching  and  con- 
tinuous an  influence  upon  the  progressive  evolution  of 
the  national  government.  It  has  introduced  an  elas- 
ticity and  expansiveness  without  which  it  is  difficult 
to  see  how  the  changing  problems  of  our  national 
economy  could  have  been  met. 

It  was,  of  course,  somewhat  natural  for  the  courts  to 
take  a  different  attitude  with  respect  to  the  powers  of 
a  subordinate  unit  of  government  from  that  which 
they  assumed  toward  the  powers  of  the  highest  gov- 
ernment of  the  land.  There  is  certainly  no  reason  in 
law,  however,  why  they  might  not  have  applied  to  the 
powers  of  cities  a  rule  of  loose  construction  similar  to 
that  which  they  applied  to  the  powers  of  Congress, 
thereby  furnishing  to  the  city  precisely  the  same  ele- 
ments of  elasticity  and  expansiveness  which  were  needed 
in  the  struggle  of  the  city  to  meet  the  changing  prob- 
lems of  municipal  life.  It  is  simply  a  fact  that  the  courts 
did  not  do  this.^  They  elected  to  regard  the  city  as  a 
corporation  rather  than  a  government;  and  they 
applied  to  the  city  the  same  rule  of  strict  construction 
of  powers  that  they  applied  in  the  case  of  private 
corporations. 

2  In  Groner  v.  City  Council  of  Portsmouth,  77  Va.  488  (1883),  the  rule  of 
loose  construction  was  applied  to  the  powers  of  a  harbor  commission  whose 
members  were  appointed  by  the  governor.  Said  the  court:  "It  is  a  well- 
settled  principle,  of  frequent  application,  that  a  general  grant  of  power 
implies  the  necessary  means  for  carrying  into  execution  the  power  granted. 
.  This  principle,-  so  clearly  stated  and  powerfully  enforced  by  Chief 
Justice  Marshall  in  McCuUoch  v.  State  of  Md.,  4  Wheat.  421,  applies  to, 
and  is  conclusive  of,  the  present  case."  The  application  of  this  rule  in  con- 
struing the  powers  of  such  a  body  is  certainly  unusual. 


34  CITY  PROGRESS  AND  THE  LAW 

Liberality  toward  the  city  in  the  earlier  cases 
There  are  in  the  books  of  record  literally  hundreds 
of  cases  involving  the  question  of  whether  this  or  that 
power  exercised  or  sought  to  be  exercised  by  a  city  was 
embraced  within  the  terms  of  its  charter  grant.  The 
mere  number  of  such  cases  makes  any  generalization, 
beyond  the  statement  of  the  general  canons  of  con- 
struction', somewhat  difficult.  It  may  doubtless  be  said, 
however,  that  in  some  of  the  earlier  cases  upon  this 
subject  there  are  a  breadth  of  vision  and  a  liberality  of 
attitude  that  are  not  to  be  found  in  most  subsequent 
cases.  Thus,  in  a  case  decided  by  the  United  States 
Supreme  Court  in  1844  there  was  drawn  into  question 
the  power  of  the  city  of  Philadelphia  to  take  and 
administer  property  that  was  bequeathed  in  trust  to 
the  city  for  certain  specified  educational,  charitable, 
and  other  purposes.  There  was  no  pretense  that  the 
charter  of  the  city  conferred  this  power  in  express 
terms  or  even  by  specific  implication.  But  since  the 
charter  did  empower  the  city  ''to  have,  purchase,  take, 
receive,  possess,  and  enjoy  lands,"  and  since  the  pre- 
amble to  the  charter  referred  broadly  to  the  "sup- 
pression of  vice  and  immorality,  to  the  advancement 
of  public  health  and  order,  and  to  the  promotion  of 
trade,  industry,  and  happiness,"  there  was  no  doubt 
in  the  mind  of  the  court  that  the  city  had  power  to 
accept  this  trust.^  The  rule  of  strict  construction  of 
corporate  powers  was  not  even  mentioned.  "It  ap- 
pears to  us,"  said  Justice  Story,  who  delivered  the 
opinion,  "that  any  attempt  to  narrow  down  the  pow- 
ers of  the  corporation  so  as  to  exclude  it  from  taking 

'  Vidal  V.  Girard's  Executors,  2  How.  127  (1844). 


THE  RULE  OF  STRICT  CONSTRUCTION  35 

property  upon  trusts  for  purposes  confessedly  char- 
itable and  beneficial  to  the  city  or  public,  would  be 
to  introduce  a  doctrine  inconsistent  with  sound  prin- 
ciples and  defeat  instead  of  promoting  the  true  policy 
of  the  state."  Here  was  certainly  no  pinched  view 
of  the  manner  in  which  municipal  powers  should  be 
construed. 

Again,  in  an  early  Maine  case,  although  the  specific 
power  contested — the  power  to  prescribe  punishment 
for  the  mutilation  of  trees  planted  in  the  streets — ^was 
not  of  much  importance,  the  court,  without  any  recital 
of  the  rule  of  strict  construction,  declared  broadly  that 
under  the  charter  authority  ''to  ordain  and  publish 
such  acts,  laws,  and  regulations,  not  inconsistent  with 
the  constitution  or  laws  of  the  state,  as  shall  be  needful 
for  the  good  order  of  the  city,"  the  municipal  corpora- 
tion might  "establish  all  suitable  ordinances  for  the 
government  of  the  city,  the  preservation  of  the  health 
of  the  inhabitants,  and  the  convenient  transaction  of 
business  within  its  limits,  and  for  the  performance  of 
the  general  duties  required  by  the  law  of  municipal 
corporations."^ 

So  also  in  an  early  Alabama  case,  the  power  of  a  city 
to  bore  an  artesian  well  for  the  supply  of  water  to  the 
inhabitants  was  sustained  under  the  authority  con- 
ferred by  the  charter  to  "pass  all  such  orders,  by-laws, 
and  ordinances  .     .     .  that  shall  be  necessary  for  the 

'State  V.  Merrill,  37  Me.  329  (1853).  Commenting  on  this  expression 
of  opinion  Judge  Dillon  declared:  "Such  would  undoubtedly  be  the  proper 
construction  if  this  were  the  only  power  given  to  the  city  to  pass  ordinances 
or  by-laws.  It  should  then  be  somewhat  liberally  construed.  But  if  such 
a  general  grant  is  given  in  connection  with,  or  at  the  end  of,  a  long  list  of 
specific  powers,  perhaps  so  extended  a  construction  might  not  be  due  it." 
Municipal  Corporations,  sth  ed.,  sec.  718,  note. 


36  CITY  PROGRESS  AND  THE  LAW 

security  and  welfare  of  the  inhabitants  thereof,  and  for 
preserving  health,  peace,  order,  and  good  government 
within  the  town."^  Although  the  court  in  this  case 
referred  to  the  rule  of  construction  applied  to  corporate 
powers,  the  rule  was  set  forth  in  much  less  exacting 
form  than  that  into  which  it  later  became  solidified. 
More  important  still,  the  view  was  advanced  that  it 
was  wholly  unnecessary  to  specify  in  the  charter  the 
"ordinary"  powers  of  a  city,  such  as  the  power  to  fur- 
nish a  supply  of  water;  it  was  necessary  only  to  enum- 
erate such  "extraordinary"  powers  as  the  legislature 
might  see  fit  to  delegate. 

It  is  worth  noting  in  this  connection,  also,  that  the 
early  statement  of  the  rule  of  strict  construction  was 
sometimes  quite  different  from  its  later  formulation. 
By  no  means  all  of  the  cases  which  have  construed  the 
powers  of  cities  with  strictness  have  in  fact  been  to  the 
disadvantage  of  the  city  viewed  as  a  community  of 
people  rather  than  a  legal  entity.  Not  infrequently 
the  rule  of  strict  construction  has  been  applied  to  defeat 
a  misuse  of  power  by  the  corporate  authorities  of  the 
city.  In  some  of  the  earlier  cases,  therefore,  it  was 
declared  not  that  any  doubt  concerning  the  existence 
of  a  power  must  be  "resolved  against  the  corpora- 
tion j''  but  that  such  doubt  was  to  be  "resolved  in 
favor  of  the  public ^^  The  difference  is  obvious.  A 
doubt  resolved  in  favor  of  the  public  might,  accord- 
ing to  circumstances,  be  either  "for"  or  "against"  the 
corporation. 

5  Intendant  and  Town  Council  of  Livingston  v.  Pippin,  31  Ala.  542  (1858). 

•See,  for  example,  Minturn  v.  Larue,  23  How.  (U.  S.)  435  (1859);  Sey- 
bert  V.  City  of  Pittsburgh,  i  Wall.  (U.  S.)  272  (1863);  Reinbothv.  Councils 
of  Pittsburg,  41  Pa.  St.  278  (1861). 


THE  RULE  OF  STRICT  CONSTRUCTION  37 

Examples  of  the  rule  of  strict  construction 
From  the  innumerable  cases  involving  the  construc- 
tion of  municipal  powers,  it  will  be  sufficient  to  instance 
a  few  in  order  to  illustrate  the  character  of  the  ques- 
tions that  have  arisen  and  the  variations  in  the  way  in 
which  the  rule  of  strict  construction  has  been  actually 
applied  by  the  courts. 

It  seems  almost  impossible  to  believe  that  fifty  or 
sixty  years  ago  municipal  corporations  in  all  parts  of 
the  country  were  engaged  in  a  wild  scramble  to  sub- 
scribe to  the  stock  of,  or  make  donations  to,  railway 
corporations.  The  exercise  of  this  particular  power 
by  cities  and  other  local  corporations  is  now  almost 
wholly  a  matter  of  historical  interest.  But  a  large 
amount  of  litigation  arose  out  of  this  situation,  and 
especially  out  of  the  later  attempts  of  cities  to  disen- 
tangle themselves  from  unhappy  financial  consequences. 
Not  infrequently  was  the  point  raised  that  an  expendi- 
ture for  railway  aid  had  been  made  which  it  was  beyond 
the  power  of  the  city  to  make.  In  the  beginning  the 
Supreme  Court  of  the  United  States,  like  most  of  the 
state  courts,  assumed  a  very  liberal  attitude  toward 
the  competence  of  cities  in  this  regard.  Thus  it  was 
held  in  1863  that  the  general  power,  subject  to  a  refe- 
rendum to  the  voters,  to  ''borrow  money  for  any  object 
in  its  discretion"  conferred  upon  a  city  the  power  to 
issue  bonds  in  aid  of  a  railway  company.^  So  also  it  was 
held  at  the  same  term  of  court  that  power  to  subscribe 
for  railway  stock  "as  fully  as  any  individual,"  included 
the  power  to  issue  bonds  for  this  purpose,  although  the 
law  granting  this  power  made  no  reference  to  a  bond 

'  Meyer  v.  City  of  Muscatine,  i  Wall.  384  (1863). 


38  CITY  PROGRESS  AND  THE  LAW 

issue. ^  Two  years  later  the  same  court  held  that  bonds 
for  railway  aid  could  be  issued  under  the  general  char- 
ter authority  to  borrow  money,  subject  to  the  approval 
of  two-thirds  of  the  voters,  "whenever  in  the  opinion 
of  the  city  council,  it  is  expedient."  There  could 
be  no  "reasonable  doubt,"  said  the  court,  that  this 
grant  was  "sufficiently  comprehensive"  for  such  a  pur- 
pose.^ 

To  any  one  who  is  acquainted  with  the  many  cases  in 
which  the  powers  of  municipal  corporations  have  been 
rigidly  construed,  these  instances  of  interpretation  by 
the  highest  court  of  the  land  must  seem  exceedingly 
liberal.  In  the  course  of  a  very  short  time,  however, 
the  disastrous  financial  results  of  the  policy  of  govern- 
ment aid  to  railways  became  apparent  in  all  parts  of 
the  country;  and  the  attitude  of  the  public  mind  upon 
this  subject  was  clearly  reflected  in  the  later  opinions 
of  the  courts.  Thus  in  1872  the  United  States  Supreme 
Court  was  heard  to  declare  that  the  implied  power  to 
issue  municipal  bonds  in  aid  of  railway  companies 
"should  not  be  encouraged  or  extended  beyond  the 
fair  inferences  to  be  gathered  from  the  circumstances  of 
each  case."  ^^  Ten  years  later  the  same  court  held  that 
the  general  power  "to  borrow  money  on  the  credit  of 
the  city  and  to  issue  bonds  therefor"  did  not  authorize 
the  issuance  of  bonds  to  aid  in  the  development  of 
water  power  for  the  city.^^    In  1889  the  court  declared 

*Seybert  v.  City  of  Pittsburgh,  i  Wall.  272  (1863). 

5  Rogers  v.  Burlington,  3  Wall.  654  (1865).  See  also  Gelpcke  v.  Dubuque, 
I  Wall.  175  (1863). 

1°  Police  Jury  v.  Britton,  15  Wall.  566  (1872);  but  see  the  Mayor  v.  Ray, 
19  Wall.  468  (1873)  and  Converse  v.  City  of  Fort  Scott,  92  U.  S.  503 
(i87S). 

"  Ottawa  V.  Carey,  108  U.  S.  no  (1882). 


THE  RULE  OF  STRICT  CONSTRUCTION  39 

that  the  express  power  to  subscribe  to  the  stock  of  a 
railway  corporation  did  not  authorize  a  city  to  issue 
bonds  to  pay  for  the  stock.  The  city  would  have  to 
''provide  for  the  payment  of  the  stock  in  the  ordinary 
way  in  which  debts  contracted  by  a  town  are  met,  that 
is,  by  funds  arising  out  of  taxation."  ^^  This  decision 
was  clearly  out  of  harmony  with  the  earlier  decisions 
upon  this  subject,  although  these  earlier  cases  were  not 
expressly  overruled. 

These  railway  aid  cases,  it  would  seem,  are  fairly 
illustrative  of  the  fact  already  mentioned — to  wit,  that 
while  it  is  easy  enough  to  formulate  the  rule  of  strict 
construction  in  general  terms,  the  actual  applications  of 
the  rule  are  undoubtedly  subject  to  considerable  varia- 
tion at  the  hands  of  the  courts. 

Where  the  specific  power  has  been  granted  to  a  city 
in  somewhat  general  terms  without  any  provision  in 
respect  to  the  manner  in  which  the  power  is  to  be  exer- 
cised, the  courts  have  often  declared  that  the  determina- 
tion of  this  manner  of  exercise  is  within  the  discretion 
of  the  municipal  authorities.  But  again,  the  courts  do 
not  always  agree  in  the  actual  application  of  this  gen- 
eral principle.  For  example,  the  Illinois  and  Arkansas 
courts  have  held  that  the  power  "to  regulate  the  in- 
spection, weighing,  and  measuring  of  brick,  lumber, 
fire-wood,  hay,  and  any  article  of  merchandise"  does 
not  by  implication  include  the  power  to  appoint  weigh- 
masters,  and  to  compel  persons  engaged  in  the  coal  busi- 
ness to  have  all  coal  weighed  and  certified  by  these 
masters. ^^  In  New  York,  however,  the  power  to  appoint 

12  Hill  V.  Memphis,  134  U.  S.  198  (1889). 

^3  City  of  Savanna  v.  Robinson,  81  111.  App.  471  (1898);  Taylor  Cleve- 
land &  Co.  V.  City  of  Pine  Bluff,  34  Ark.  603  (1879). 


40  CITY  PROGRESS  AND  THE  LAW 

weighmasters  of  coal  was  held  to  imply  the  power  in  the 
city  to  compel  their  employment  by  dealers;^*  and 
in  Missouri  the  power  to  "regulate  and  establish  stan- 
dards of  weights  and  measures"  and  to  provide  "for  the 
inspection  and  weighing  or  measuring  of  hay  or  stove 
coal,  charcoal,'  fire- wood,  and  all  other  kinds  of  fuel" 
was  held  to  sanction  an  ordinance  prohibiting  the  sale 
of  coal  unless  the  load  had  been  "weighed  by  a  weigher 
approved  of  by  the  mayor,  and  authorized  by  the  law 
to  weigh  the  same."  ^^  Somewhat  the  same  rule  of  inter- 
pretation on  this  point  has  been  applied  in  lowa.^^ 

In  at  least  two  jurisdictions,  Missouri  and  Florida, 
it  has  been  held  that  the  power  to  enact  an  ordinance 
preventing  cruelty  to  animals  may  be  derived  from  a 
"general  welfare"  clause  embodied  in  a  municipal  char- 
ter. ^^  It  has  been  held  in  Michigan  that  a  city  enjoys 
the  power  to  erect  a  city  hall  by  "general  implication," 
even  though  the  charter,  which  mentions  specifically 
such  things  as  waterworks,  hospitals,  markets,  ceme- 
teries, public  grounds,  and  parks,  contains  no  specific 
reference  to  a  city  hall.^^  So  also  in  Nebraska  the  power 
to  build  a  jail  may  be  implied  from  the  power  to  enforce 
ordinances  by  fine  and  imprisonment.^®  But  in  Missouri 
the  power  to  "grant,  purchase,  hold  and  receive  prop- 
erty real  and  personal"  does  not  authorize  a  municipal 
corporation  to  acquire  property  for  a  park.  In  the 
view  of  the  court  the  proper  cy  which  the  city  might 

"  Stokes  V.  City  of  New  York,  14  Wend.  (N.  Y.)  87,  (1835). 
"  Sylvester  Coal  Company  v.  City  of  St.  Louis,  130  Mo.  323  (1895). 
"  Davis  V.  Anita,  73  la.  325  (1887). 

"St.  Louis  V.  Schoenbusch,  95  Mo.  618  (1888);  Porter  v.  Vinzant,  49 
Fla.  213  (1905)- 

1'  Torrent  v.  Muskegon,  47  Mich.  115  (1881). 
w  Dunkin  v.  Blust  (Neb.),  119  N.  W.  8  (1908). 


THE  RULE  OF  STRICT  CONSTRUCTION  41 

acquire  was  only  such  as  might  be  used  for  purposes 
specifically  mentioned  in  the  charter — property  that 
might  be  necessary,  for  example,  to  execute  the  ex- 
pressly granted  power  "to  organize  and  maintain  fire 
companies."  ^o 

The  recital  of  such  decisions  as  these  is  not  in  itself 
of  especial  interest.  It  serves  merely  to  illustrate  that 
the  rule  of  strict  construction  is,  after  all,  a  more  or 
less  variable  thing  in  application. 

Implied  power  to  grant  franchises  and  to  regulate 
public  utilities 

As  might  be  expected,  this  question  of  how  the 
powers  of  a  city  shall  be  construed  has  arisen  frequently 
in  connection  with  various  matters  relating  to  the 
subject  of  public  utilities.  It  has  usually  been  held, 
for  example,  that  the  power  to  contract  with,  or  grant 
a  franchise  to,  a  more  or  less  necessary  public  utility 
may  be  implied  from  other  powers  granted  in  a  munici- 
pal charter.  Thus  the  power  "to  prevent  and  extinguish 
fires"  necessarily  and  fairly  implies  the  power  to  con- 
tract for  a  supply  of  water. ^^  Indeed  the  furnishing  of 
water  has  come  to  be  regarded  as  such  a  necessity  in 
cities  that  the  authority" to  contract  for  a  water  supply 
has  been  placed  upon  the  broad  grant  of  power  to 
"enact  such  laws  and  regulations"  as  the  city  "may 
deem  necessary  .  .  .  for  the  good  order  and  welfare 
of  said  city."  22    On  the  other  hand,  it  has  almost  in- 

^°  Vaughn  v.  Village  of  Greencastle,  104  Mo.  App.  206  (1903).  See  also 
in  respect  to  the  power  to  acquire  parks  by  implication,  Bloomsburg  Im- 
provement Co.,  V.  Bloomsburg,  215  Pa.  St.  452  (1906). 

2^  Waterworks  Company  v.  Webb  City,  78  Mo.  App.  422  (1898). 

22  City  of  Greenville  v.  Greenville  Water  Works  Co.,  125  Ala.  625  (1899). 


42  CITY  PROGRESS  AND  THE  LAW 

variably  been  held  that  a  city  may  not  grant  an  ex- 
elusive  franchise  for  the  furnishing  of  any  utility  unless 
the  power  to  make  such  exclusive  grant  is  expressly 
conferred.  This  rule  is  one  of  those  which  has  been 
laid  down,  not  so  much  in  derogation  of  the  powers  of 
cities  as  for  the  protection  of  the  local  public  against 
a  misuse  of  powers  by  the  corporate  authorities.  ^^ 

When  a  city  has  an  express  or  implied  grant  of  author- 
ity to  contract  with  or  grant  a  franchise  to  a  utility 
corporation,  a  distinction  has  been  drawn  between  the 
power  of  the  city  to  fix  the  rates  in  the  franchise  con- 
tract and  its  competence  to  regulate  rates  continuously 
under  the  police  power.  Its  power  to  contract  in 
respect  to  rates  has  usually  been  held  to  be  implied  if 
the  city  has  power  to  contract  for  such  purpose  at  all.^* 
But  the  authority  to  enact  police  ordinances  prescrib- 
ing rates  has  usually  been  denied  unless  express  war- 
rant of  the  charter  can  be  shown. ^^  The  difference  is 
patent.  In  the  one  case  the  utility  corporation,  at  the 
time  when  it  enters  into  the  franchise  contract,  volun- 
tarily aeeepts  the  rates  prescribed  as  one  of  the  condi- 

23  Minturn  v.  Larue,  23  How.  435  (1859);  Detroit  Citizens*  Street  Railway 
Company  v.  City  of  Detroit,  no  Mich.  384  (1896);  Detroit  Citizens'  Street 
Railway  v.  Detroit  Railway,  171  U.  S.  48  (1898). 

24  City  of  Indianapolis  v.  Gas-Light  &  Coke  Co.,  66  Ind.  396  (1879); 
Illinois  Trust  &  Savings  Bank  v.  Arkansas  City,  76  Fed.  271  (1896);  Omaha 
Water  Co.  v.  City  of  Omaha,  147  Fed.  i  (1906);  Muncie  Natural  Gas  Co.  v. 
City  of  Muncie,  160  Ind.  97  (1902);  Zanesville  v.  Gas-Light  Co.,  47  O. 
St.  I  (1889);  City  of  Noblesville  v.  Gas  and  Improvement  Co.,  157  Ind.  162 
(1901);  Western  Paving  &  Supply  Co.  v.  Railroad  Co.,  128  Ind.  525  (1891); 
City  of  Indianapolis  v.  Trust  Co.,  140  Ind.  107  (1894);  City  of  Cleveland  v. 
Railway  Co.,  201  U.  S.  529  (1906);  City  of  Detroit  v.  Railway  Co.,  184 
U.  S.  368  (1901);   Boerth  v.  Detroit  City  Gas  Co.,  152  Mich.  654  (1908). 

^  For  the  general  principle  of  strict  construction  see  Interstate  Commerce 
Commission  v.  Railway  Co.,  167  U.  S.  479  (1897).  See  also  St.  Louis  v. 
Bell  Telephone  Co.,  96  Mo.  623  (1888). 


THE  RULE  OF  STRICT  CONSTRUCTION  43 

tions  of  the  contract.  In  the  other  case  the  city 
attempts  to  impose  a  rate  without  the  consent  of  the 
corporation.  Or,  as  it  has  sometimes  been  expressed, 
the  one  power  is  a  part  of  the  city^s  power  to  contract; 
the  other  is  a  part  of  its  power  to  legislate. 

While  it  is  generally  held  that  the  power  to  regulate 
the  rates  and  service  of  utility  corporations  (apart 
from  contract  stipulations)  must  be  expressly  con- 
ferred, the  courts  vary,  as  usual,  in  the  way  in  which 
they  actually  apply  this  rule.  Thus  the  United  States 
Supreme  Court,  in  a  case  decided  in  1903,  did  not  hesi- 
tate to  reverse,  in  favor  of  the  power  of  a  city  to  regu- 
late water  rates,  the  decision  of  a  lower  United  States 
court  construing  an  ambiguously  worded  charter  pro- 
vision.2^  In  other  words,  ambiguity  was  resolved  in 
favor  of,  not  against,  the  city  as  well  as  the  public.  So 
also  the  Illinois  supreme  court  held  that  the  city  of 
Chicago  had  power  to  regulate  street  railway  fares 
under  a  charter  provision  empowering  the  city  to 
* 'license,  tax  and  regulate  hackmen,  draymen,  omnibus 
drivers,  carters,  cabmen,  porters,  expressmen,  and  all 
others  pursuing  like  occupations,  and  to  prescribe  their 
compensation."  "  it  is  manifest  that  the  court,  had 
it  so  elected,  might  easily  have  held  the  street  railway 
business  to  be  an  "occupation'*  unlike  that  of  a  cab- 
man or  porter  or  even  an  omnibus  driver.  On  the 
other  hand,  the  Indiana  court,  which  has  in  some 
respects  been  conspicuously  liberal  in  its  construction 
of  municipal  powers,  has  held  that  in  expressly  grant- 
ing the  power  '*to  require  companies  to  change  grades 

"  Owensboro  »,  Owensboro  Waterworks  Co.,  191  U.  S.  358  (1903). 

'^  Chicago  Union  Traction  Co.  v.  City  of  Chicago,  199  111.  484  (1902). 


44  CITY  PROGRESS  AND  THE  LAW 

and  crossings  of  their  respective  roads,  and  to  raise  or 
lower  tracks  in  order  to  conform  to  any  grade  which 
may  be  established  by  ordinance,"  the  legislature  did 
not  contemplate  *'the  broad  and  extraordinary  power  of 
abolishing  grade  crossings  within  the  city,  and  com- 
pelling the  [railway]  companies  to  construct  and  main- 
tain a  system  of  elevated  tracks"  within  a  prescribed 
district.  All  that  the  city  could  do  under  the  apparently 
comprehensive  grant  was  to  require  the  abolishment  of 
specific  crossings  found  to  be  particularly  dangerous.^^ 

Implied  power  to  own  and  operate  public  utilities 

There  is  another  group  of  cases  relating  to  the  power 
of  cities  in  respect  to  local  public  utilities;  these  in- 
volve questions  of  the  power  of  the  city  to  own  and 
operate  public  utilities  in  the  absence  of  express  grants 
of  power.  Mention  has  already  been  made  of  an  early 
Alabama  case  in  which  it  was  held  that  a  city  might 
provide  a  water  supply  from  an  artesian  well  under  a 
general  grant  of  power  to  provide  "for  the  security  and 
welfare  of  the  inhabitants  thereof,  and  for  preserving 
health,  peace,  order,  and  good  government"  within  the 
city.  2^  So  also  in  an  early  Georgia  case  it  was  held  that 
under  the  power  to  make  such  contracts  as  were  "nec- 
essary for  the  welfare  of  the  city"  and  to  "levy  a  tax 
for  the  fulfilment  of  the  same,"  the  city  was  competent 
not  only  to  construct  a  waterworks  but  also  to  issue 
bonds  for  this  purpose.    Such  a  service,  said  the  court 

^  state  ex  rel.  City  of  Indianapolis  v.  Indianapolis  Union  Ry.  Co.,  i6o 
Ind.  45  (1902). 

^  Intendant  and  Town  Council  of  Livingston  v.  Pippin,  31  Ala.  542  (1858) , 
supra,  36. 


THE  RULE  OF  STRICT  CONSTRUCTION  45 

was  "necessary  to  the  health  and  security  of  the  city."^^ 
This  decision  was  subsequently  reaffirmed;  and  in  a 
much  later  case  the  highest  court  of  the  same  state 
declared  that  the  power  to  erect  and  maintain  not 
only  a  waterworks  but  also  an  electric  plant  could  be 
sustained  under  the  general  charter  grant  of  power  "to 
do  all  things  for  the  benefit  of  the  city,  and  all  things  not 
in  violation  of  the  constitution  and  laws  of  this  state."  ^^ 
One  of  the  most  latitudinarian  opinions  ever  ex- 
pressed upon  this  subject  was  delivered  by  the  supreme 
court  of  Wisconsin  in  1895.^2  The  municipal  charter  in 
question  expressly  declared  that  the  city  should  have 
**no  power  to  borrow  money  or  contract  any  debt  which 
cannot  be  paid  out  of  the  revenues  of  the  fiscal  year 
.  .  .  except  as  otherwise  provided"  and  that  no 
money  should  "be  appropriated  for  any  purpose  what- 
ever, except  as  is  expressly  authorized  by  the  city 
charter."  No  provision  of  the  charter  was  cited  which 
granted  the  power  to  construct  either  a  waterworks  or 
an  electric  plant.  Brushing  these  facts  aside,  the  court 
declared  broadly: 

It  is  not  necessary  to  seek  for  an  express  delegation  of  power  to 
the  city  to  build  a  waterworks  and  electric  lighting  plant  in  order  to 
determine  whether  such  power  exists,  for  the  general  power  in  re- 
spect to  police  regulations,  the  preservation  of  the  public  health,  and 
the  general  welfare  includes  the  usual  means  of  carrying  out  such 
power,  which  includes  municipal  water  and  lighting  services. 

This  breadth  of  view  is  certainly  highly  commenda- 
ble.   Had  it  been  the  usual  view  of  the  courts,  the  en- 

'°  Mayor  and  Council  of  Rome  v.  Cabot,  28  Ga.  50  (1859);  reaffirmed  in 
Wells  V.  Mayor  and  Council  of  Atlanta,  43  Ga.  67  (1871). 

3^  Heilbron  v.  Mayor  and  Council  of  Cuthbert,  96  Ga.  312  (1895). 
'^  EUinwood  v.  City  of  Reedsburg,  91  Wis.  131  (1895), 


46  CITY  PROGRESS  AND  THE  LAW 

cumbered  pathway  of  more  than  one  city  would  have 
been  cleared,  leveled,  smoothed.  It  must  be  clearly 
recognized,  however,  that  it  is  nothing  more  nor  less 
than  a  complete  repudiation  of  the  usually  applied  doc- 
trine of  strict  construction. 33  The  court  cited  a  number 
of  cases  in  support  of  this  expression  of  opinion;  but 
none  of  the  cases  so  cited  was  in  point  of  fact  rested 
upon  so  unqualified  a  declaration  of  the  principle  of 
law  involved. 

Very  soon  after  the  introduction  of  electricity  for 
lighting  purposes  it  was  held  in  South  Carolina  that  a 
city  might  acquire  an  electric  light  plant  to  be  used 
exclusively  for  public  lighting  under  the  "general  police 
power"  conferred  by  the  charter.^^  In  North  Carolina 
an  interesting  decision  was  handed  down  in  1903,  in 
which  it  was  held  that  the  incurring  of  indebtedness  for 
the  construction  of  a  water  system  and  an  electric  light 
plant  was  a  "necessary  expense"  within  the  meaning  of 
that  term  as  used  in  a  municipal  charter. ^^  It  does  not 
clearly  appear  from  the  case  whether  or  not  the  city 
was  granted  any  express  power  to  own  and  operate 
either  of  these  utilities,  but  the  opinion  would  seem  to 
indicate  the  contrary.  The  view  was  expressed  that 
In  the  efforts  of  the  courts  to  check  extravagance  and  to  prevent 
corruption  in  the  government  of  towns  and  cities,  the  judicial 
branch  of  the  government  has  probably  stood  by  former  decisions 
from  too  conservative  a  standpoint,  and  thereby  obstructed  the 

^  In  a  dictum  in  McBean  v.  Fresno,  112  Cal.  159  (1896),  the  court  said: 
"Proper  sewers  are  in  this  day  so  essential  to  the  hygiene  and  sanitation  of 
a  municipaUty  that  a  court  would  not  look  to  see  whether  a  power  to  con- 
struct and  maintain  them  had  been  granted  by  the  charter,  but  rather  only 
to  see  whether,  by  possibility,  the  power  had  been  denied." 

^^Mauldin  v.  Greenville,  33  S.  C.  i  (1889). 

^  Fawcett  v.  Mt.  Airy,  134  N.  C.  125  (1903). 


THE  RULE  OF  STRICT  CONSTRUCTION  47 

advance  of  business  ideas  which  would  be  most  beneficial  if  put 
into  operation;  and  this  conservatism  of  the  courts,  outgrown  by 
the  march  of  progress,  sometimes  appears  at  a  serious  disad- 
vantage. 

In  a  recent  Illinois  case  it  was  held  that  the  power 
granted  to  cities  to  construct  or  acquire  "street  rail- 
ways" included  the  power  to  construct  or  acquire  a 
subway.  "There  is  no  difference,"  said  the  court,  "be- 
tween street  surface  railways  and  those  constructed 
beneath  the  streets."  This  case  is  of  interest  not  be- 
cause of  any  extreme  liberality  but  because  the  oppo- 
site view  might  easily  have  been  taken  had  the  court 
cared  to  apply  anything  like  a  rigid  rule  of  interpre- 
tation. 

It  will  be  observed  that  the  cases  which  have  been 
noted  show  a  decided  judicial  bent  in  the  direction  of 
sustaining  the  right  of  a  city  to  own  and  operate  public 
utilities  even  though  the  power  may  not  be  unmistaka- 
bly granted  by  the  charter.  It  is  interesting  to  remark, 
moreover,  that  there  are  not  many  cases  on  this  subject 
that  lean  toward  the  rule  of  very  strict  construction. 
This  is  doubtless  due  in  large  part  to  the  fact  that 
cities  have  not  frequently  undertaken  to  supply  utility 
services  where  they  have  not  been  expressly  empowered 
to  do  so.  One  or  two  cases  on  the  opposite  side  may, 
however,  be  mentioned.  Thus  the  New  Jersey  court 
of  errors  and  appeals  has  declared  that  a  law  "author- 
izing the  lighting  of  public  streets  and  places  in  the 
cities,  towns,  and  townships,  boroughs  and  villages  of 
the  state,  and  to  erect  and  maintain  the  proper  appli- 
ances" for  doing  so,  does  not  vest  in  a  municipality  the 
power  to  construct  and  operate  an  electric  lighting 


48  CITY  PROGRESS  AND  THE  LAW 

plant  even  though  such  plant  be  used  for  the  sole  pur- 
pose of  lighting  the  streets  and  public  places.^^  On  the 
very  face  of  things,  this  was,  of  course,  an  extremely- 
contracted  interpretation  of  the  language  of  the  statute 
in  question.  So,  also,  where  the  power  to  regulate  the 
sale,  manner  of  selling,  and  inspection  of  meats,  and  the 
power  to  ''do  all  acts,  and  make  all  regulations  which 
may  be  necessary  or  expedient  for  the  promotion  of 
health  or  the  suppression  of  disease"  were  granted  by 
the  terms  of  the  charter,  it  was  held  in  Illinois  that  a 
city  was  nevertheless  without  power  to  establish  a 
municipal  abattoir.  ^^  Perhaps  some  extenuation  for 
the  refusal  of  the  court  to  apply  a  liberal  rule  of  con- 
struction in  this  case  may  be  found  in  the  fact  that 
abattoirs  are  not  among  the  utilities  that  are  com- 
monly owned  by  American  cities. 

Implied  power  to  expand  a  utility  into  the 
commercial  field 

In  the  case  of  most  municipal  utilities  It  is  possible 
to  distinguish  between  two  kinds  of  public  service. 
Water  is  needed  for  fire  protection,  street  cleaning, 
and  other  strictly  public  uses  as  well  as  for  private 
consumption.  Gas  and  electricity  are  required  for 
lighting  the  streets,  parks,  and  public  buildings,  as 
well  as  for  distribution  to  residents.  In  a  number  of 
instances  question  has  arisen  whether  under  the  terms 
of  this  or  that  charter  a  city  empowered  to  own  and 
operate  a  particular  public  utility  could  sell  its  service 
to  private  persons  in  addition  to  satisfying  the  more 

^  Howell  V.  Millville.  60  N.  J.  L.  95  (1897). 

*'  Huesing  v.  City  of  Rock  Island,  128  111.  465  (1889). 


THE  RULE  OF  STRICT  CONSTRUCTION  49 

obviously  public  needs.  The  cases  involving  questions 
of  this  kind  have  arisen  more  frequently  in  respect  to 
the  utilities  of  gas  and  electricity  than  in  respect  to 
the  supply  of  water,  for  the  manifest  reason,  no  doubt, 
that  duplication  in  the  matter  of  lighting  services  is  at 
once  more  feasible  and  less  absurd  than  in  the  case 
of  the  water  service.  In  a  few  cases,  however,  contest 
has  arisen  even  in  respect  to  the  sale  of  water  to  con- 
sumers. For  example,  in  Tennessee,  where  the  charter 
conferred  the  power  to  "provide  the  city  with  water  by 
water  works,"  the  "city"  was  in  effect  construed  to  in- 
clude the  inhabitants  as  well  as  the  corporate  entity. 
The  court  regarded  the  clause  as  "very  broad  and 
comprehensive. ' ' 

When  it  comes  to  the  power  of  a  city  to  engage  in  the 
business  of  commercial  lighting  without  explicit  authori- 
zation, the  decisions  of  the  courts  are  not  in  harmony. 
Thus  in  Massachusetts  ^^  and  in  Illinois  ^^  the  power 
"to  erect  and  maintain  street  lamps,"  or  "to  provide  for 
lighting  the  streets,  alleys,  avenues,  sidewalks,  parks, 
and  public  grounds,"  has  been  held  not  to  include  the 
power  to  engage  in  commercial  lighting.  In  Nebraska 
there  is  a  dictum  to  the  same  effect, ^^  while  in  South 
Carolina  a  similar  narrow  construction  was  perhaps 
fairly  justified  in  view  of  the  fact  that  the  authority  of 
the  city  to  acquire  the  electric  plant  even  for  strictly 
public  purposes  was  found  only  in  a  general  charter 
grant  of  the  police  power.'*^ 

^  Spaulding  v.  Peabody,  153  Mass.  129  (1891).  This  case  was  concerned 
with  the  implied  powers  of  towns,  not  cities. 

'^Ladd  V.  Jones,  61  111.  App.  584  (1895);  Blanchard  v.  Benton,  109  111. 
App.  569  (1903);   Palestine  v.  Siler.  225  111.  630  (1907). 

*°  Christensen  v.  Fremont,  45  Neb.  160  (1895). 

**  Mauldin  v.  Greenville,  33  S.  C.  i  (1889);  supra,  46. 


50  CITY  PROGRESS  AND  THE  LAW 

On  the  other  hand,  the  authority  of  the  city  to  expand 
the  operations  of  a  municipally  owned  lighting  plant 
from  the  public  into  the  commercial  field  has  been 
sustained  in  Indiana  under  the  power  "to  light  the 
streets,  alleys,  and  other  public  places  of  such  city  or 
town  with  electric  light,  or  other  form  of  light  ;"^2  {^ 
Florida  under  the  power  "to  provide  for  lighting  the 
city  by  gas  or  other  illuminating  material;"*^  in  Iowa 
under  the  power  "to  establish  and  maintain  electric 
light  plants  ;"^^  in  North  Carolina,  as  already  men- 
tioned, under  the  authority  to  incur  indebtedness  for 
any  "necessary  expense;*'*^  in  California  under  the 
authority  to  "acquire,  own,  construct,  maintain,  and 
operate"  a  number  of  specified  public  utilities  including 
"gas  and  other  works  for  light  and  heat;"^^  while  in 
Texas  a  city  authorized  to  install  an  electric  plant 
for  lighting  the  streets  may  at  least  sell  excess  current 
to  private  citizens,  "after  discharging  its  duty  to  the 
public,"  even  though  some  of  the  streets  may  not  have 
been  provided  with  light /^ 

It  may  perhaps  be  said,  on  the  whole,  that  the  weight 
of  authority  sustains  the  implied  power  of  a  city  to 
furnish  a  utility  service  to  private  consumers  where 

*2  Crawfordsville  v.  Braden,  130  Ind.  149  (1891). 

^Jacksonville  Electric  Light  Co.  v.  Jacksonville,  36  Fla.  229  (1895). 

^  Thompson-Houston  Electric  Co.  v.  City  of  Newton,  42  Fed.  723 
(1890). 

*^Fawcett  v.  Mt.  Airy,  134  N.  C.  125  (1903);   supra,  46. 

*^  Gary  v.  Blodgett,  10  Gal.  App.  463  (1909);  failing  to  follow  Hyatt  v. 
Williams,  148  Gal.  585  (1906),  where  the  contrary  rule  was  applied.  See 
also  Glark  v.  Los  Angeles,  160  Gal.  30  (191 1).  where  the  Gary  case  was  cited 
with  approval,  the  specific  question  before  the  court  being  whether  the  city 
might  furnish  electric  current  for  motive  power  as  well  as  for  light  and 
heat. 

"  Crouch  V.  City  of  McKinney,  (Tex.)  104  S.  W.  518  (1907). 


THE  RULE  OF  STRICT  CONSTRUCTION  51 

the  power  is  expressly  granted  to  own  and  maintain 
such  a  utility  for  any  purpose.  In  one  of  the  earliest 
cases  and  perhaps  the  leading  case  upon  this  subject,  *^ 
so  far  as  the  utility  of  electricity  is  concerned,  the  court 
argued  as  follows: 

The  corporation  possessing,  as  it  does,  the  power  to  generate  and 
distribute  through  its  limits,  electricity  for  the  lighting  of  its  streets 
and  other  public  places,  we  can  see  no  good  reason  why  it  may  not 
also,  at  the  same  time,  furnish  it  to  the  inhabitants  to  light  their 
residences  and  places  of  business.  To  do  so,  is  in  our  opinion,  a 
legitimate  exercise  of  the  police  power  for  the  preservation  of  prop- 
erty and  health.  It  is  averred  in  the  complaint  that  the  light  which 
the  city  proposes  to  furnish  for  individual  use  is  the  incandescent 
light.  Here  again  is  a  fact  of  which  we  are  authorized  to  take  judi- 
cial knowledge.  A  light  thus  produced  is  safer  to  property,  and 
more  conducive  to  health  than  the  ordinary  light.  Produced  by  the 
heating  of  a  filament  of  carbon  to  the  point  of  incandescence  in  a 
vacuum,  there  is  nothing  to  set  property  on  fire,  or  to  consume  the 
oxygen  in  the  surrounding  air,  and  thus  render  it  less  capable  of  sus- 
taining life  and  preserving  health. 

Implied  power  to  furnish  a  utility  service  beyond 
the  city  limits 

Still  another  aspect  of  the  implied  powers  of  a  munici- 
pality in  owning  and  operating  public  utilities  is  con- 
cerned with  the  power  of  the  city  to  furnish  service 
beyond  its  own  boundaries.  Normally  the  jurisdiction 
of  a  city  in  respect  to  all  of  its  functions  is  confined 
within  its  own  geographical  limits.  That  the  legislature 
may,  and  sometimes  does,  empower  a  city  to  exercise 
exterritorial  jurisdiction  is  beyond  question.  So  far 
as  utilities  are  concerned  perhaps  the  most  notable 

**  Crawfordsville  v.  Braden,  130  Ind.  149  (1891). 


52  CITY  PROGRESS  AND  THE  LAW 

instance  of  this  was  the  grant  to  the  city  of  Cincinnati 
of  power  to  own  and  operate  a  steam  railway  which 
connected  the  city  with  points  many  miles  away.  This 
express  grant  of  power  was  sustained  by  the  Ohio 
supreme  court."*^  But  what  of  exterritorial  powers  by 
implication? 

In  a  fairly  early  Michigan  case  it  was  held  that  under 
the  power  to  "construct,  repair,  and  preserve  sewers" 
a  city  could  by  implication  contract  for  the  disposal 
of  its  sewage  beyond  the  city  limits.  Such  implication, 
however,  the  court  thought  "must  arise  from  the  exis- 
tence of  a  state  of  facts  which  render  it  either  actually 
necessary,  or  at  least  manifestly  desirable."  In  the  par- 
ticular case  under  review  such  a  state  of  facts  was 
found  to  exist.^^  Cases  may  undoubtedly  be  found  in 
which  the  implied  power  of  a  city  to  furnish  an  excess 
of  service  to  extra-mural  residents  has  been  denied ;  ^^ 
but  the  more  widely  accepted  rule  would  seem  to  be  to 
the  contrary.  This  is  founded  upon  the  general  notion 
that  while  a  city  may  not  by  implication  exercise  its 
strictly  governmental  powers  beyond  its  boundaries, 
it  is,  in  o\vning  and  operating  a  utility,  acting  more 
nearly  in  a  private  or  proprietary  capacity,  and  that 
in  consequence  its  powers  should  be  "construed  in 
accordance  with  the  general  rules  that  apply  to  private 
individuals  and  corporations."  ^^  On  the  other  hand,  a 
city  may  not  by  implication  purchase  a  franchise  in 

49  Walker  v.  City  of  Cincinnati,  21  O.  St.  14  (1871). 
^°  Coldwater  v.  Tucker,  36  Mich.  474  (1877). 

"  See,  for  example,  City  of  Paris  v.  Sturgeon,  (Tex.)  no  S.  W.  459  (1908). 

^2  See,  for  example,  City  of  Henderson  v.  Young,  119  Ky.  224  (1904)- 

See  also  on  the  same  point  Schneider  v.  Menasha,  118  Wis.  298  (1903) 


THE  RULE  OF  STRICT  CONSTRUCTION  53 

another  city  or  contract  to  furnish  another  city  with 
a  utility  service.^^ 

Implied  power  to  engage  in  business  of  a  collateral 
character 

Finally  must  be  mentioned  those  cases  in  which 
question  has  been  raised  concerning  the  competence  of 
a  city,  without  express  authorization,  to  engage  in 
some  undertaking  or  business  that  is  only  collaterally 
related  to  a  service  which  it  is  expressly  empowered  to 
perform.  These  cases  are  not  numerous,  but  they  are 
both  interesting  and  important. 

In  two  states  the  courts  have  been  called  upon  to 
determine  whether  a  city  may  by  implication  acquire 
and  operate  a  rock  quarry  for  the  purpose  of  securing 
material  for  the  maintenance  of  its  streets.  In  Wiscon- 
sin the  court  found  no  difficulty  in  sustaining  this  com- 
petence as  being  implied  in  the  power  ^'to  improve 
streets"  and  to  ^'purchase  such  real  estate  as  it  is  deemed 
reasonably  necessary  or  convenient  for  the  city^s  use."  ^^ 
In  this  case  the  property  in  question  lay  outside  of  the 
city  limits,  and  most  of  the  opinion  was  directed  to 
upholding  the  view  already  mentioned  that  in  the  exer- 
cise of  its  so-called  business  functions  a  city  may,  with- 
out specific  grant  of  power,  control  property  outside  of 
its  boundaries,  the  city  acting  as  an  owner  rather  than 
as  a  government.  In  Virginia,  on  the  other  hand,  the 
implied  power  of  a  city  to  acquire  and  operate  a  rock 
quarry,  whether  within  or  without  the  corporate  limits, 

•^'Dyer  v.  City  of  Newport,  123  Ky.  203  (1906);  Farwell  v.  Seattle,  43 
Wash.  141  (1906). 

"Schneider  v.  Menasha,  118  Wis.  298  (1903). 


54  CITY  PROGRESS  AND  THE  UVW 

has  been  more  than  once  denied.*^  In  this  state  the  vkw 
was  taken  that  a  dty  cannot,  in  the  absence  of  express 
authorization,  exenase  any  function  beyond  its  limits. 
In  Michigan  a  dty  may  not,  unless  ^jedfically  emfww- 
ered,  engage  in  the  manufacture  of  bricks  to  be  used  fcM" 
street  paving.**  Said  the  court  in  the  brief  opinion  that 
was  read: 

We  ^ree  whfa  the  optnioo  filed  in  the  drcaiit  court  that  the  power 
to  engage  in  the  business  of  bffkJcmakii^  is  not  induded  in  the  pcjir- 
eis  cxpresBiy  g;ranted  to  the  dty,  and  that  it  is  neither  fairly  implied 
in,  nor  incident  to,  socfa  poivers  as  are  ezpfessly  granted,  nor  is  it 
indispensable  or  even  eawpntial  to  the  dedared  objects  and  purposes 
ci  the  corporation.  WliHe  the  law  permits  munidpal  coipcM^atkMis 
to  do  those  things  which  are  necessary  to  accomplish  the  objects  of 
their  creation,  under  an  implication  of  power  .  .  .  ,  the  grant 
has  not  usuaDy  been  hdd  to  go  as  far  as  to  permit  them  to  ei^age  in 
the  manufacture  of  articles  necessary  to  their  lawful  enterprises, 
where  they  are  in  ooomion  nse  and  are  to  be  had  in  the  open  market. 

FinaDy,  it  may  be  noted  that  in  a  Mississippi  case 
in  which  the  dty  was  expressly  granted  the  power  of 
eminent  domain  to  be  exercised  for  certain  specified 
purposes  "and  for  any  other  purpose"  it  was  held  that 
this  power  could  not  be  used  to  condemn  land  for  a 
^ur  track  leading  to  a  power  plant  which  the  dty  was 
empowered  to  own.  The  dty  sought  to  construct  this 
track  in  order  to  save  expense  in  the  transportation  of 
coal. 

It  win  be  observed  that  in  none  of  the  cases  just 
mentioned  was  there  any  attempt  on  the  part  of  the 

•>  Duncan  «.  City  of  Lyndibms,  (Va.)  34  Sl  E.  964  (1900);  Dooable's 
Adflunatratar  ».  Town  at  HanJaonbiirg.  104  Va.  S33  (iposJ:  Radford  v. 
Cbffc.  113  Va.  199  (1912). 

^Attorney  General  9.  Cammoa  Coandl  of  Detroit.  150  Mkfa.  310 
(1907). 


THE  RULE  OF  STRICT  CONSTRUCTION  55 

city  to  go  into  a  business  involving  the  sale  of  products 
or  service  to  private  persons.  Each  of  them  involved 
a  function  that  would  eliminate  certain  purchases  by 
the  city  from  private  persons;  but  that  was  the  limit 
of  their  effect  upon  private  business.  One  can  see  at  a 
glance  the  extremes  to  which  either  one  of  the  views 
expressed  in  these  cases  might  lead.  Every  large  city 
is  a  purchaser  of  a  great  variety  of  supplies.  Any  city 
that  undertook  to  acquire  the  sources  for,  or  to  manu- 
facture a  considerable  number  of,  the  various  commodi- 
ties it  required  would  indeed  have  a  staggering  problem 
on  its  hands.  On  the  other  hand,  the  extreme  logic 
of  the  denial  expressed  in  some  of  these  cases  would 
prohibit  a  city  from  mixing  its  own  paints  for  public 
work,  or  from  manufacturing  its  own  asphalt.  The 
truth  of  the  matter  seems  to  be  that  the  city,  like  a 
private  individual  or  private  corporation,  ought  to  be 
allowed  to  use  its  own  judgment  in  such  matters.  It  is 
a  common  practice  for  private  persons  engaged  in  this 
or  that  line  of  business  to  effect  economies  by  purchas- 
ing sources  of  materials  or  by  manufacturing  incidental 
products  needed  for  the  particular  business.  On  the 
whole,  the  decision  of  the  Wisconsin  court  in  sustaining 
the  implied  right  of  a  city  to  own  a  rock  quarry  strikes 
with  much  force.  The  time  has  arrived,  perhaps,  when 
we  should  abandon  the  prevalent  notion  that  the  busi- 
ness judgment  of  a  city  is  invariably  either  a  poor  judg- 
ment or  a  corrupt  judgment. 

In  one  or  two  interesting  cases  question  has  arisen 
as  to  the  implied  power  of  a  city  to  go  into  the  business 
of  selling  to  private  persons  products  or  service  of  a 
character  collateral  to  the  business  of  operating  a  par- 


56  CITY  PROGRESS  AND  THE  LAW 

ticular  utility.  Thus,  in  a  Georgia  case  it  was  held  that 
a  city  could  not,  as  an  incident  to  the  operation  of  its 
water  system,  go  into  the  plumbing  business.  The 
court  regarded  this  as  an  "independent  business  enter- 
prise or  occupation  such  as  is  usually  pursued  by  private 
individuals;"  it  was  an  affair  "entirely  unconnected  with 
a  proper  administration  of  its  [the  city's]  governmental 
duties."^^  In  Michigan,  however,  it  has  recently  been 
held  that  in  connection  with  the  operation  of  an  electric 
plant  a  city  may  "do  electric  wiring  .  .  .  and  fur- 
nish fixtures  and  other  accessories  essential  and  conve- 
nient in  using  electricity.'*  ^^  Emphasizing  the  fact  that 
the  management  of  an  electric  plant  was  a  business 
enterprise  rather  than  a  governmental  function,  the 
court  said: 

It  may  well  be  contended  that  furnishing  to  customers  taking 
electricity  the  necessary  devices  or  equipment  to  produce  heat, 
power,  or  light  from  the  current  is  naturally  incidental  to  and  an 
implied  power  connected  with  the  business  of  operating  an  electric 
plant.  It  does  not  appear  that  the  municipality  in  so  doing  is  con- 
ducting the  business  by  different  methods  or  under  other  rules  than 
those  which  are  observed  by  and  control  private  business  corpora- 
tions or  private  individuals  in  the  operation  of  an  electric  plant. 

The  court  attempted  to  distinguish  between  this 
case  and  the  Georgia  plumbing  case  on  the  ground  that 
water  is  delivered  to  the  consumer  ready  for  use,  while 
electric  current  that  is  delivered  at  the  consumer's 
premises  is  useless  "without  further  mediums  and  appli- 
ances." It  may  well  be  asked,  however,  whether  wiring 
and  electric  fixtures  are  any  more  indispensable  for 
rendering  current  practically  available  than  are  piping, 

"  Keen  v.  Mayor  and  Council  of  Waycross,  loi  Ga.  588  (1897). 
68  Andrews  v.  City  of  South  Haven,  187  Mich.  294  (1915)- 


THE  RULE  OF  STRICT  CONSTRUCTION  57 

and  faucets  and  sinks  and  tubs  for  rendering  water 
practically  available.  The  fact  is  that  the  two  cases 
appear  to  be  quite  irreconcilable,  although  it  is  to  be 
remarked  that  in  practice  electric  companies  frequently 
supply  wiring  and  fixtures  while  water  companies  sel- 
dom if  ever  carry  on  a  plumbing  business. 

In  the  light  of  numerous  modem  cases  in  which  the 
rule  of  strict  construction  of  municipal  powers  has  been 
applied  with  considerable  severity,  it  is  open  to  question 
whether  it  may  be  said  that  the  rule  Is  gradually  being 
broken  down.  It  Is  a  difficult  task  to  weaken  the  force 
of  a  long-standing  rule  of  law.  From  the  cases  that 
have  been  under  review,  nevertheless.  It  would  seem 
that  important  Inroads  are  being  made  upon  the  rigidity 
with  which  the  rule  of  strict  construction  has  been 
applied.  It  is  not  to  be  expected  that  the  courts  will 
abandon  this  rule  entirely  and  adopt  a  rule  of  loose 
construction  somewhat  similar  to  that  applied  in  inter- 
preting the  powers  of  the  Congress  of  the  United  States. 
It  is  not  even  to  be  expected  that  in  the  near  future  they 
will  discontinue  the  reiteration  of  the  usual  canons  of 
construction  as  formulated  by  Judge  Dillon.  It  Is  only 
to  be  hoped  that  in  the  specific  application  of  these 
canons  they  will  In  fact  assume  a  reasonably  liberal 
attitude.  This,  as  we  have  seen,  the  courts  may  do 
if  they  care  to  do  so.  It  would  be  highly  desirable  if 
they  would  return  to  the  view  that  any  doubt  against 
the  powers  of  a  municipal  corporation  should  be  re- 
solved, not  necessarily  against  the  corporation,  but 
always  In  favor  of  the  public,  whether  for  or  against  the 
corporation. 


CHAPTER  III 

EXPANDING  THE  POLICE  POWER- 
SMOKE  AND  BILLBOARDS 

It  is  very  nearly  impossible  to  define  the  term  "police 
power"  in  phrases  that  are  any  less  general  than  the 
term  itself.  For  our  purposes  here,  however,  the  concept 
of  the  term  may  be  fairly  described  without  great  diffi- 
culty. On  the  one  hand,  our  national  and  state  consti- 
tutions, by  clauses  of  both  specific  and  general  import, 
establish  protection  for  the  individual  over  against  the 
government  in  a  large  but  somewhat  elastic  sphere  of 
liberty  and  of  property  rights.  On  the  other  hand,  the 
very  existence  of  the  government,  endowed  with  regu- 
latory powers,  clearly  recognizes  that  the  rights  of  the 
individual  to  his  liberty  and  his  property  cannot  and 
should  not  be  absolute. 

Some  of  the  powers  which  we  confer  upon  our  gov- 
ernments are  granted  in  express  or  clearly  implied  terms. 
The  police  power,  as  the  term  is  commonly  understood, 
is  not  in  this  category.  It  is  a  power  which  the  govern- 
ment enjoys  without  specification.  For  this  reason  our 
national  government,  being  a  government  of  enumer- 
ated powers,  enjoys  no  general  police  power.^  Such 
power  is  vested  in  the  states,  for  the  governments  of  our 

1  Under  specific  powers  the  national  government  exercises  certain  powers 
assimilable  to  those  which  might  be  included  within  the  term  police  power. 
The  power  to  regulate  commerce,  for  example,  has  been  used  for  police 
purposes;  but  in  such  instances  Congress  is  exercising  not  the  police  power 
but  its  power  over  commerce. 


SMOKE  AND  BILLBOARDS  59 

states,  being  governments  not  of  enumerated  but  of 
residuary  powers,  enjoy  all  powers  not  denied  to  them 
by  the  federal  constitution  or  their  own  constitutions. 
The  powers  of  our  state  governments,  then,  may  be 
regarded  as  constituting  a  zone  that  lies  between  the 
constitutionally  protected  rights  of  the  individual  on 
the  one  side,  and  unlimited  governmental  supremacy 
over  the  individual  (outside  of  the  sphere  of  national 
powers)  on  the  other  side.  In  this  zone  the  uncharted 
police  power  of  the  state  government  occupies  the  most 
conspicuous  place.  Whatever  governmental  action  may 
be  justified  under  the  police  power  is  not  regarded  as 
trenching  upon  the  constitutional  rights  of  the  indi- 
vidual; neither  is  it  regarded  as  sustaining  the  notion 
that  the  powers  of  the  government  over  the  individual 
are  unlimited.  The  police  power,  therefore,  lies  in,  and 
constitutes  one  of  the  major  parts  of,  this  middle 
ground  in  which  the  government  may  act  upon  the 
individual  by  restriction  or  compulsion. 

The  common  subjects  of  the  police  power 
But  what  subjects  of  legislation  are  included  within 
the  range  of  the  police  power?  In  a  general  way  these 
subjects  may  be  separated  into  two  groups — those  re- 
lating to  social  affairs  and  those  relating  to  economic 
affairs.  In  each  of  these  groups  a  few  large  subjects  are 
well  settled  as  being  within  the  police  power.  Thus,  in 
the  social  group,  it  is  universally  recognized  that  the 
public  peace  or  order,  the  public  health,  public  morals, 
and  public  safety — each  in  itself  offering  a  broad  and 
by  no  means  clearly  marked  field  for  governmental 


6o  CITY  PROGRESS  AND  THE  LAW 

regulation — are  proper  subjects  for  legislation  under  the 
police  power.  A  law  prohibiting  the  carrying  of  con- 
cealed weapons,  or  a  law  providing  for  the  quarantine 
of  persons  afflicted  with  contagious  diseases,  or  a  law 
prohibiting  indecent  publications,  or  a  law  requiring 
fire  escapes  on  designated  classes  of  buildings  clearly 
interferes  with  the  liberty  of  individuals;  but  such  laws 
are  sustained  as  proper  exercises  of  the  police  power  in 
the  interest  respectively  of  the  peace,  the  health,  the 
morals,  the  safety  of  the  public.  These  are  unques- 
tionably the  primary  subjects  of  control  under  the 
police  power;  and,  on  the  whole,  the  courts  are  inclined 
to  sanction  a  very  wide  legislative  discretion  with  ref- 
erence to  such  subjects.  Thus,  to  cite  only  a  single 
example,  laws  prohibiting  the  conduct  of  business  and 
amusements  on  Sunday  are  commonly  upheld,  although 
such  regulations  cannot  be  constitutionally  sustained 
upon  religious  grounds,  have  no  especial  relation 
to  the  preservation  of  the  peace,  safety,  or  even  the 
morals  of  the  community,  and  can  be  logically  gath- 
ered under  the  protection  of  public  health  only  if  it 
be  conceded  that  the  legislature  has  complete  power 
to  regulate  periods  of  labor  and  rest,^  which  is  open 
to  question. 

*  Professor  Freund  would  sustain  such  legislation  as  a  "protection  of  the 
good  order  and  comfort  of  the  community."  Police  Power,  p.  169.  But  it 
can  scarcely  be  argued  that  what  constitutes  "good  order"  varies  with  the  day 
of  the  week,  while  the  "comfort  of  the  community"  presents,  to  say  the  least, 
a  somewhat  vague  concept,  although  the  phrase  is  not  infrequently  used  by 
the  courts  in  general  discussions  of  the  police  power.  The  truth  appears  to 
be  that,  notwithstanding  constitutions  to  the  contrary,  legislation  of  this 
kind  is  in  frank  recognition  of  the  fact  that  the  Christian  religion  is  the 
religion  of  the  major  portion  of  the  people  of  the  United  States.  Because 
of  our  constitutions,  however,  courts  must  of  necessity  find  other  grounds, 
whether  reasonable  or  unreasonable. 


SMOKE  AND  BILLBOARDS  6i 

In  the  group  of  police  power  subjects  relating  to 
economic  affairs  may  be  mentioned  frauds  and  dis- 
honesty, oppression,  business  affected  with  a  public 
interest,  and  conservation  of  natural  resources.  Thus  a 
law  regulating  weights  and  measures  may  be  sustained 
as  a  protection  to  the  public  against  fraud.  A  law  pro- 
hibiting combinations  in  restraint  of  trade  is  a  protec- 
tion against  economic  oppression.  A  law  regulating 
public  utility  rates  or  service  is  upheld  because  the 
business  of  furnishing  utilities  is  affected  with  a  peculiar 
public  interest.^  A  law  establishing  a  closed  season 
for  the  shooting  of  game  or  the  taking  of  fish  is 
supported  in  the  interest  of  protecting  natural  re- 
sources. 

It  is  easy  enough  to  indicate  in  this  general  way  the 
broad  social  and  economic  subjects  that  are  commonly 
regarded  as  being  within  the  scope  of  the  police  power. 
But  notwithstanding  the  obvious  elasticity  of  each  of 
these  broadly  named  subjects,  the  courts  have  never 
been  content  to  restrict  the  police  power  within  the 
confines  set  by  such  an  enumeration.  In  describing  the 
police  power  generally,  they  have  commonly  enumer- 
ated only  the  social  subjects — peace,  order,  health, 
morals,  safety — and  have  omitted  all  specific  reference 
to  economic  subjects.  Almost  invariably,  however, 
certain  very  indefinite  subjects  have  been  included,  such 
as  the  "general"  or  ''public  welfare,"  the  ''public  com- 
fort or  convenience,"  and  the  "general  prosperity"  or 
the  ' 'general  well-being' '  of  the  community.  Indeed,  the 
courts  have  deliberately,  and,  it  would  seem,  wisely, 
left  the  police  power  practically  undefined  in  scope. 

3  Infra,  ch.  VII. 


62  CITY  PROGRESS  AND  THE  LAW 

Take,  for  example,  as  a  single  instance  among  many,  the 
view  expressed  by  Mr.  Justice  Harlan:* 

The  learned  counsel  for  the  railway  company  seem  to  think  that 
the  adjudications  relating  to  the  police  power  of  the  state  to  protect 
the  public  health,  the  public  morals  and  the  public  safety  are  not 
applicable,  in  principle,  to  cases  where  the  police  power  is  exerted 
for  the  general  well-being  of  the  community  apart  from  any  question 
of  the  public  health,  the  public  morals  or  the  public  safety.  . 
We  cannot  assent  to  the  view  expressed  by  counsel.  We  hold  that 
the  police  power  of  a  state  embraces  regulations  designed  to  pro- 
mote the  public  convenience  or  the  general  prosperity,  as  well  as 
regulations  designed  to  promote  the  public  health,  the  public  morals 
or  the  public  safety.  .  .  And  the  validity  of  a  police  regulation, 
whether  established  directly  by  the  state  or  by  some  public  body 
acting  under  its  sanction,  must  depend  upon  the  circumstances  of 
each  case  and  the  character  of  the  regulation,  whether  arbitrary  or 
reasonable  and  whether  really  designed  to  accomplish  a  legitimate 
public  purpose. 

It  seems  perfectly  patent  that  such  comprehensive 
phrases  as  "public  welfare,"  ''public  convenience," 
"general  prosperity,"  or  "general  well-being"  are  intan- 
gible and  illusive.  It  is  utterly  impossible  to  example 
them  in  any  satisfactory  manner.  As  the  learned  justice 
remarks,  "the  circumstances  of  each  case"  and  the  rea- 
sonableness of  the  regulation  must  govern.  It  is  of 
importance  to  note,  nevertheless,  that,  however  unlim- 
ited their  definitions  have  been,  the  courts  have  not  in 
point  of  fact  sustained  under  the  police  power  many 
laws  regulating  matters  that  lie  wholly  outside  of  the 
broadly  designated  social  and  economic  subjects  that 
have  been  mentioned.    A  few  of  the  instances  in  which 

*  C.  B.  &  Q.  Railway  Co.  v.  People  ex  rel.  Drainage  Commissioners,  200 
U.  S.  561  (1905)  at  p.  592. 


SMOKE  AND  BILLBOARDS  63 

they  have  done  so  will  be  referred  to  in  a  later  con- 
nection. 

The  police  power  in  relation  to  constitutional  limitations 

This  broadly  and  vaguely  defined  police  power  is  in 
perpetual  opposition  to  the  guaranties  of  personal  lib- 
erty and  private  property  rights  as  established  by  our 
constitutions.  The  courts  are  kept  constantly  engaged 
in  marking  at  specific  points  the  boundary  line  between 
the  two.  A  complete  boundary  line  has  not  been  and 
will  not  be  drawn.  There  are  two  general  constitu- 
tional guaranties  which  are  of  principal  importance  in 
this  connection — the  guaranty  of  equal  protection  of! 
the  laws  and  the  guaranty  of  due  process  of  law. ' 
Each  of  these  may  be  viewed  as  affording  protec- 
tion to  private  rights  as  against  improper  exercises 
of  the  police  power  under  somewhat  different  circum- 
stances. 

Even  when  the  legislature  is  acting  upon  one  of  those 
general  subjects  of  control  that  are  universally  recog- 
nized to  be  within  the  scope  of  the  police  power,  the 
competence  of  the  legislature  is  not  without  constitu- 
tional limitations  in  behalf  of  private  rights;  for  no 
person  within  the  jurisdiction  of  a  state  may  be  denied 
the  equal  protection  of  the  laws.  The  problem  pre- 
sented by  this  guaranty  is  indeed  complex;  but, 
broadly  speaking,  this  means  that  no  person  or  class  of 
persons  may  be  singled  out  for  regulation  from  among 
other  persons  in  equality  or  similarity  of  circumstance. 
A  law  regulating  hours  of  labor  may  be  sustained  as  a 
proper  exercise  of  the  police  power  in  the  interests  of 
the  public  health.     If  such  a  law  is  made  applicable 


64  CITY  PROGRESS  AND  THE  LAW 

only  to  children,  it  may  not  be  successfully  contended 
that  this  is  a  denial  of  equal  protection  of  the  laws;  for 
children  constitute  a  reasonable  class — a  class  that 
bears  a  definite  relation  to  the  purpose  of  the  law.  But 
if  such  a  law  were  made  applicable  to  adult  laborers  in 
one  industry  and  inapplicable  to  those  in  another  in- 
dustry of  practically  the  same  character,  it  would  be 
void  on  the  ground  of  discrimination;  it  would  deny 
equal  protection  of  the  laws.  Individual  liberty  and 
property  rights  are  not,  therefore,  wholly  at  the  mercy 
of  the  legislature,  even  when  it  seeks  to  regulate  some 
subject  that  is  admittedly  within  the  scope  of  the 
public  power. 

When  the  legislature  attempts  to  go  beyond  the 
police  power — to  regulate  some  matter  which  the  courts 
refuse  to  regard  as  being  within  its  proper  scope — it  is 
perhaps  needless  to  say  that  constitutional  protection 
may  also  be  successfully  invoked  to  defeat  such  legis- 
lation. In  instances  of  this  kind  there  is  available  to 
the  aggrieved  person  not  only  the  guaranty  of  equal 
protection  of  the  laws  but  also  the  clause  which  declares 
that  no  state  shall  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law.  Indeed,  in  many 
of  the  cases  upon  this  subject  the  courts  fail  to  draw 
any  clear  distinction  between  these  two  guaranties. 
The  regulation  of  railway  rates  is  a  proper  exercise  of 
the  police  power  because  the  railway  business  is  affected 
with  a  peculiar  public  interest;  but  if  rates  are  reduced 
to  a  point  at  which  a  reasonable  income  cannot  be 
earned,  the  railway  company  is  not  only  denied  the 
equal  protection  of  the  laws,  which  other  persons  enjoy 
in  being  permitted  to  earn  reasonable  incomes  on  their 


SMOKE  AND  BILLBOARDS  65 

investments,  but  is  also  deprived  of  property  without 
due  process  of  law  by  reason  of  the  confiscatory  char- 
acter of  the  rates. 

The  police  power  distinguished  from  taxation 
and  eminent  domain 

The  police  power  must  be  distinguished  from  the 
taxing  power  and  from  the  power  of  eminent  domain. 
These  latter  powers  always  involve  the  taking  of  private 
property.  For  property  that  is  taken  in  the  form  of 
taxes  the  individual  usually  receives  no  direct  compen- 
sation. For  property  taken  under  the  power  of  emi- 
nent domain  he  must  be  paid  just  compensation.  Each 
of  these  powers  may,  however,  be  used  for  police  pur- 
poses. Most  taxes  are  imposed  solely  for  revenue  pur- 
poses; but  a  high  liquor  license  tax,  for  example,  may 
be  imposed  primarily  for  purposes  of  regulation.  In 
other  words,  it  may  be  a  police  measure  in  the  interest 
of  health  and  morals.  Even  so,  the  levying  of  such  a 
tax  is  a  manifestation  of  the  taxing  power  rather  than 
the  police  power.  The  power  of  eminent  domain  is 
used  primarily  to  secure  real  property  for  direct  public 
use;  but  this  power  may  also  be  used  for  police  pur- 
poses. Thus,  when  a  railway  company  is  required  to 
make  a  change  of  grade  at  a  street  crossing,  in  order  to 
secure  the  public  safety,  and  damages  are  allowed  as 
compensation  to  the  company,  this  is  manifestly  an 
exercise  of  the  power  of  eminent  domain  for  police 
purposes.  Indeed,  it  is  probably  true  to  say  that  the 
power  of  eminent  domain  may  be  used  in  any  instance 
in  which  the  police  power  might  be  used  to  the  impair- 
ment of  property  rights.    But  the  reverse  of  this  is  not 


66  CITY  PROGRESS  AND  THE  LAW 

true,  for  certain  important  distinctions  may  be  drawn 
between  these  two  powers. 

In  the  first  place,  property  rights  may  be  invaded 
under  the  police  power  only  when  the  free  exercise  of 
such  rights  has  become  detrimental  to  the  public;  and 
while  the  power  of  eminent  domain  may  be  used  in  like 
circumstances  it  is  nevertheless  commonly  used  only 
when  the  property,  regardless  of  the  effect  or  character 
of  its  private  use,  is  needed  for  actual  public  use.  For 
instance,  a  hospital  which  constituted  a  nuisance  might 
be  abated  under  the  police  power  or  might  be  con- 
demned under  the  power  of  eminent  domain,  but  prop- 
erty for  a  hospital,  even  though  its  use  be  in  the  interest 
of  the  public  health,  could  not  be  acquired  under  the 
police  power,  but  only  by  eminent  domain.  In  the 
second  place,  regulation  under  the  police  power  ordi- 
narily imposes  only  a  comparatively  slight  burden  upon 
private  property,  leaving  its  substantial  value  un- 
impaired.^ Under  eminent  domain,  however,  it  is 
common  either  to  take  property  entirely  or  to  take  the 
major  portion  of  its  beneficial  uses,  leaving,  if  anything, 
little  more  than  the  naked  legal  title.®  Property 
owners  may  be  required  in  the  interest  of  public  health 
to  leave  a  portion  of  a  lot  unoccupied  by  a  building;  but 
this  portion  could  be  taken  for  street  purposes  only  by 
eminent  domain.     In  the  third  place,  while  neither  of 

^  This  is  not  always  the  case.  Property  which  is  of  no  large  value  and 
which  can  normally  be  used  only  for  a  purpose  forbidden  by  the  law  may  be 
sequestrated  and  destroyed.  So  also  property  that  imminently  endangers 
the  safety  of  the  public  (such  as  an  unstable  wall  or  building,  or  a  building 
in  the  path  of  a  fire)  may  be  summarily  destroyed.  Again,  the  entire  value 
of  improvements  on  real  property  may  be  destroyed  by  regulations  which 
require  the  removal  of  an  offensive  business  to  a  new  site. 

*  This  is  not  the  case  when  eminent  domain  is  used  for  police  pur- 


SMOKE  AND  BILLBOARDS  67 

these  powers  may  be  used  for  other  than  a  public 
purpose,  it  is  perhaps  natural  that  courts  should  re- 
gard the  purposes  for  which  property  may  be  taken 
upon  the  payment  of  compensation  as  more  inclusive 
than  the  purposes  for  which  property  may  be  inter- 
fered with  without  such  compensation.  It  may  be,  for 
example,  that  eminent  domain  may  be  used  where  the 
purpose  in  view  is  purely  aesthetic,  while  the  police 
power  might  not  be  so  used.  As  we  shall  see,  however, 
the  law  upon  this  subject  is  not  as  yet  fully  settled. 

So  much  for  the  general  setting  of  the  police  power 
under  our  system  of  jurisprudence. 

It  has  been  said  that  the  police  power  belongs  to  the 
states.  Such  power  or  parts  of  it  may,  however,  be 
delegated  to  cities  by  the  state  legislature.  In  every 
charter  enumeration  of  municipal  powers  there  are 
slices  of  the  general  police  power  of  the  state.  Although 
a  considerable  number  of  cases  may  be  found  in  which 
the  exercise  of  this  or  that  municipal  power  has  been 
referred  to  the  "general  police  power"  of  the  city,  it  is 
probably  correct  to  say  that  as  a  rule  cities  are  regarded 
as  possessing  only  specifically  delegated  portions  of 
such  power.  ^  However,  we  are  here  interested  not  so 
much  in  the  extent  to  which  the  police  power  is  ex- 
ercised in  cities  directly  by  the  legislature  instead  of  by 
the  corporate  authorities  but  rather  in  the  constitu- 
tional limitations  that  are  imposed  upon  its  exercise  by 
either  of  these  agencies  of  government.  The  governing 
principles  are  the  same  in  either  case.    Let  us  consider, 

^In  California  (Art.  XI,  sec.  11),  Washington  (Art.  XI,  sec.  11),  and 
Ohio  (Art.  XVIII,  sec.  3)  a  general  local  police  power  is  delegated  to  all 
cities  by  constitutional  provision. 


68  CITY  PROGRESS  AND  THE  LAW 

then,  the  status  of  the  law  in  respect  to  the  exercise  of 
the  police  power  in  cities  over  certain  specific  matters  of 
modem  interest  and  importance. 

The  smoke  nuisance 

For  twenty-five  years  or  more  cities  in  the  United 
States  have  been  wrestling  more  or  less  abortively  with 
the  problem  of  smoke  prevention.  The  problem  has  its 
practical,  its  scientific,  and  its  legal  aspects.  On  the 
one  hand,  it  is  manifest  that  the  very  foundations  of 
modem  civilization  rest  upon  the  consumption  of  fuel; 
the  very  existence  of  cities  is  predicated  upon  it.  On 
the  other  hand,  everybody  recognizes  that  the  great 
quantity  of  smoke  that  shrouds  whole  cities  or  sections 
of  cities  in  an  almost  unbroken  twilight  pall  is,  to  put 
it  mildly  and  indefinitely,  highly  objectionable.  One 
learned  judge  has  somewhat  over- vividly  described 
smoke  as  something  which  *' stifles  the  breath,  produces 
nausea  and  headache,  drives  children  from  their  play- 
grounds, and  men  from  their  gardens,  prevents  the 
drying  of  clothes  and  ventilation  of  houses,  darkens  the 
sunlight,  and  converts  pleasant  residences  into  prisons 
in  dog  days,  and  defiles  carpets,  curtains,  and  dinner- 
plates  with  deposits  of  soot  and  dirt.  "^  One  need 
scarcely  subscribe  to  the  whole  of  this  lurid  picture  of 
a  city  population  scurrying  to  cover,  as  it  were,  in  the 
face  of  a  dread  pestilence.  Indeed,  a  distinguished  sci- 
entist,^ who  argues  that  the  solids  in  smoke,  which  are 
often  invisible,  are  really  its  "most  objectionable  prop- 

^  Quoted  in  People  v.  Horton,  41  N.  Y.  Misc.  309  (1903). 

^  Goss  (Dean  of  the  College  of  Engineering,  University  of  Illinois),  A 
Problem  of  the  Modern  City,  in  Proceedings  of  the  Engineers'  Society  of 
Western  Pennsylvania,  March,  191 5,  13:  2:229. 


SMOKE  AND  BILLBOARDS  69 

erties,"  has  recently  declared  that  "we  really  know  very 
little  about  smoke,  and  much  less  concerning  means 
whereby  it  may  be  suppressed.  .  .  .  All  existing 
ordinances  designed  to  abate  smoke  are  limited  to  a 
consideration  of  a  single  property  of  smoke,  namely,  its 
visibility.  'Black  smoke',  or  'dense  brown  smoke',  or 
'dense  smoke'  are  among  the  things  which  are  prohib- 
ited. .  .  .  But  the  conception  is  imperfect  and  any 
procedure  based  thereon  will  fail  to  give  the  full  mea- 
sure of  relief  desired." 

Progress  has,  however,  been  made  in  the  scientific 
study  of  the  properties  and  effects  of  smoke  and  of 
methods  of  abatement,  notably  by  the  researches  of 
the  Mellon  Institute  of  Industrial  Research  and  School 
of  Specific  Industries  at  Pittsburgh.  And  we  may  con- 
fidently look  for  more  and  more  accurate  information 
upon  this  subject  as  time  goes  on.  Meantime,  cities 
have  not  waited ;  and  the  courts  have  been  called  upon 
to  consider  the  validity  of  their  regulatory  ordinances. 

A  consideration  of  the  powers  of  a  city  to  abate  smoke 
takes  us  into  the  somewhat  complex  subject  of  nui- 
sances. There  is  no  question  that  where  a  person  can 
prove  that  he  is  personally  suffering  from  smoke  caused 
by  the  action  of  another  he  may  ordinarily  secure  an 
injunction  to  protect  himself.  So,  also,  where  a  city  is 
empowered  to  abate  nuisances — and  most  cities  are  so 
empowered — the  authorities  of  the  city  may  take  action 
in  such  circumstances  looking  to  the  protection  of  the 
individual  aggrieved.  In  instances  of  this  kind  the 
smoke  would  be  regarded  as  a  private  nuisance — that  is, 
*'one  which  affects  a  private  right  not  common  to  the 
public,  or  which  causes  special  injury  to  the  person  or 


70  CITY  PROGRESS  AND  THE  LAW 

property  of  a  single  person  or  a  definite  number  of 
persons/ '1®  But  a  private  nuisance  can  be  abated  only 
upon  proof  of  direct  and  specific  injury;  and  it  is  ob- 
vious that  the  smoke  problem  in  most  cities  cannot  be 
dealt  with  as  an  interminable  series  of  incidents  in  which 
proof  of  specific  injury  must  be  shown  in  each  case. 

A  public  nuisance,  on  the  other  hand,  is  "one  which 
affects  at  the  same  time  an  entire  community  or  neigh- 
borhood or  any  considerable  number  of  persons,  al- 
though the  extent  of  the  annoyance  or  damage  inflicted 
upon  individuals  may  be  unequal."  ^^  Such  a  nuisance 
may  be  prohibited  by  a  law  or  ordinance  which  im- 
poses a  penalty;  and  the  only  proof  that  is  necessary 
for  conviction  is  proof  of  the  commissi9n  of  the  unlaw- 
ful act.  It  is  unnecessary  to  show  any  specific  injury 
to  person  or  property.  The  term  "public  nuisance"  is 
often  used  interchangeably  with  the  term  "nuisance 
per  5^,"  that  is,  one  which  "cannot  be  so  conducted  or 
maintained  as  to  be  lawfully  carried  on  or  permitted 
to  exist. "^2  It  is  only  as  a  public  nuisance  that  smoke  as 
a  general  municipal  problem  may  be  adequately  dealt 
with,  if  at  all.^3  Some  of  the  laws  and  ordinances  deal- 
ing with  this  subject,  in  apparent  mitigation  of  extreme 
prohibition,  have  been  so  qualified  that  they  seem  to 

10  Joyce  on  Nuisances,  sec.  8. 

"  Ibid.,  sec.  7;  quoted  from  California  Civil  Code,  sec.  3480,  as  an 
example  of  statutory  definition. 

^^  Ibid.,  sec.  12.  If  there  is  a  valid  distinction  between  these  terms  it  is 
by  no  means  consistently  applied  by  the  courts. 

13  "The  difficulty  of  proving  damages  in  each  case  practically  nullified 
the  ordinance."  So  declared  the  Smoke  Abatement  Committee  of  the  Civic 
League  of  St.  Louis,  in  commenting  upon  the  results  of  the  decision  of  St. 
Louis  V.  Heitzeberg  Packing  and  Provision  Co.,  141  Mo.  375  (1897).  The 
Smoke  Nuisance,  1906,  p.  8. 


SMOKE  AND  BILLBOARDS  71 

put  the  smoke  nuisance  in  a  half-way  position  between 
a  private  and  a  public  nuisance.  Thus  the  sanitary 
code  of  the  city  of  New  York  imposes  a  penalty  for  the 
emission  of  smoke  "to  the  detriment  or  annoyance  of 
any  person  or  persons;"  and  it  has  been  held  that  evi- 
dence must  be  introduced  to  show  that  the  emission  of 
smoke  actually  caused  personal  detriment  and  annoy- 
ance.^^ The  smoke  must  be  "in  fact  a  nuisance,"  said 
the  court,  "not  perhaps  within  the  full  scope  of  the 
common  law  nuisances,  but  a  nuisance  which,  by 
annoying  one  or  more  persons,  shall  be  constructively 
a  public  nuisance."  Obviously  under  such  circum- 
stances the  difficulty  of  specific  proof  places  smoke 
more  nearly  in  the  category  of  private  than  of  public 
nuisances.  ^^ 

From  the  viewpoint  of  the  law,  two  principal  legal 
difficulties  have  arisen  in  connection  with  ordinances 
declaring  smoke  to  be  an  unqualified  public  nuisance. ^^ 
One  of  these  has  concerned  the  competence  of  the  city 
to  enact  an  ordinance  of  this  kind  where  its  charter 
has  not  granted  such  power  in  express  terms.  Practi- 
cally every  city  is  endowed  with  power  to  abate  nui- 
sances; but  this  does  not  of  necessity  vest  the  city  with 
power  to  define  or  declare  what  shall  constitute  a  public 

**  People  V.  Sturgis,  121  N.  Y.  App.  Div.  407  (1907). 

^^See  also  Erie  R.  Co.  v.  Mayor  etc.  of  Jersey  City,  84  Atl,  697  (1912), 
where  the  ordinance  under  review  prohibited  dense  smoke  which  "contains 
soot  or  other  substance  in  sufficient  quantity  to  cause  injury  to  health  or 
damage  to  property;"  and  People  v.  Lewis,  86  Mich.  273  (1891),  where  a 
similar  qualifying  clause  was  embodied  in  the  ordinance. 

^^  It  seems  unnecessary  to  discuss  the  question  of  a  denial  of  equal  pro- 
tection of  the  laws  which  has  arisen  in  some  cases  by  reason  of  exemptions 
established  by  the  regulatory  ordinance.  See,  for  example,  City  of  Brooklyn 
V.  Nassau  El.  R.  R.  Co.,  44  N.  Y.  App.  Div.  462  (1899);  People  v.  Lewis, 
86  Mich.  273  (1891);   Moses  v.  United  States,  16  App.  D.  C,  428  (1900). 


72  CITY  PROGRESS  AND  THE  LAW 

nuisance.  It  has  been  held,  therefore,  that  a  city  may 
not  prohibit  generally  the  emission  of  dense  smoke 
unless  it  is  expressly  empowered  to  declare  what  shall 
be  a  nuisance.  1^  But  in  New  York  an  ordinance  of 
this  kind  has  been  sustained  under  the  general  "power 
to  enact  sanitary  ordinances  having  the  force  of  law." ^^ 
Indeed,  there  is  probably  only  one  case  in  which  the 
city  enjoying  the  power  to  "declare,"  as  well  as  to 
"prevent  and  abate,"  nuisances  has  been  denied  this 
competence.  ^^ 

Of  much  greater  importance,  however,  in  the  consid- 
eration of  the  validity  of  smoke  prevention  ordinances 
is  the  question  as  to  whether  such  ordinances  are  within 
the  scope  of  the  police  power.  It  must  be  borne  in 
mind,  in  the  first  place,  that  the  consumption  of  fuel  is 
absolutely  indispensable.  Even  though  it  were  proved 
that  smoke  is  detrimental  to  the  public  health  and 
injurious  to  property,  it  is  inconceivable  that  the  courts 
would  allow  any  regulation  to  stand  which  in  effect 
operated  to  prohibit  fuel  consumption.  In  the  second 
place,  the  regulation  of  smoke  must  be  gathered  under 
some  appropriate  subject  of  police  power  control. 

1'^  City  of  St.  Paul  v.  GilfiUan,  36  Minn.  298  (1886),  distinguishing  on  this 
ground  Harmon  v.  City  of  Chicago,  no  111.  400  (1884).  See  also  Glucose 
Refining  Co.  v.  City  of  Chicago,  138  Fed.  209  (1905)-  In  City  of  St.  Paul  v. 
Johnson,  69  Minn.  184  (1897),  and  City  of  St.  Paul  v.  Haugbro,  93  Minn.  59 
(1904),  the  question  of  the  city's  power  to  declare  dense  smoke  a  public 
nuisance  was  not  discussed. 

^^  People  V.  Horton,  41  N.  Y.  Misc.  309  (1903);  Department  of  Health 
of  the  City  of  New  York  v.  EbHng  Brewing  Co.,  78  N.  Y.  Supp.  ii  (1902), 

"  St.  Louis  V.  Heitzeberg  Packing  &  Provision  Co.,  141  Mo.  375  (1897). 
Thereafter  the  Missouri  legislature  enacted  a  law  applicable  to  St.  Louis 
which  declared  dense  smoke  to  be  a  public  nuisance.  This  law  was  sustained 
in  State  v.  Tower,  185  Mo.  79  (1904);  but  the  Heitzeberg  case  was  appar- 
ently not  overruled  on  the  point  respecting  the  power  of  the  city. 


SMOKE  AND  BILLBOARDS  73 

In  a  few  instances  the  courts  have  been  greatly  Influ- 
enced by  the  argument  that  consumers  have  found  it 
physically  difficult,  if  not  impossible,  to  comply  with 
the  regulations  imposed.  Thus,  in  Missouri  an  ordi- 
nance was  declared  "wholly  unreasonable"  which  es- 
sayed *'in  advance  of  any  known  device  for  preventing 
it  [dense  black  or  very  thick  grey  smoke]  to  punish  all 
who  produce  it  in  any  degree  whatever.  "20  50  in  Penn- 
sylvania the  enforcement  of  an  ordinance  that  imposed 
a  fine  for  permitting  "smoke  from  bituminous  coal  to 
be  emitted  .  .  .for  over  three  minutes"  was  held  to 
be  "impracticable,  not  to  say  impossible. "^i  In  New 
Jersey  an  ordinance  which  prohibited  the  emission  of 
dense  smoke  was  sustained  in  its  application  to  fac- 
tories and  private  establishments ;  22  but  a  similar  ordi- 
nance was  declared  to  be  unreasonable  in  its  application 
to  a  railway  and  "in  derogation  of  the  charter  rights  of 
the  road . "  ^3  The  court  did  not  say  that  compliance  with 
the  ordinance  was  impossible,  but  this  is  probably  the 
inference  to  be  drawn  from  the  declaration  that  a  rail- 
way company  might  "make  such  noise,  smoke,  and 
smells  as  are  reasonably  unavoidable  in  the  careful  and 
proper  conduct  of  its  business,  even  if  some  injury  to 
health  and  some  damage  to  property  be  caused  there- 

2°  St.  Louis  V.  Heitzeberg  Packing  &  Provision  Co.,  141  Mo.  375  (1897). 
The  ordinance  was  also  held  to  be  ultra  vires.  The  state  law  on  this  subject 
-which  was  subsequently  upheld  in  State  v.  Tower,  supra,  declared  that  "if 
there  were  no  known  practical  devices  or  appliances  by  which  dense  smoke 
so  generated  could  be  prevented,"  the  owners  and  managers  of  buildings 
"should  not  be  punished  therefor." 

21  Pittsburgh  v.  Keech  Co.,  21  Penn.  Sup.  548  (1902). 

82  Atlantic  City  v.  France,  75  N.  J.  L.  910  (1907). 

2'  Erie  R.  Co.  v.  Mayor  etc.  of  Jersey  City.  84  Atl.  697  (191 2);  Pennsyl- 
vania R.  Co.  V.  Mayor  etc.  of  Jersey  City,  87  Atl.  465  (1913). 


74  CITY  PROGRESS  AND  THE  LAW 

by."  In  a  recent  Michigan  case  it  was  held  that  an 
ordinance  prohibiting  dense  black  or  grey  smoke  could 
not  be  enforced  in  its  application  to  steamboats  where 
the  "evidence  of  expert  marine  engineers  showed  that 
there  was  no  known  appliance  which  could  be  used  upon 
marine  boilers  to  prevent  the  emission  of  smoke"  so  long 
as  "the  consumption  of  bituminous  coal  is  permitted. "^4 
The  court  did  not  discuss  why  the  ordinance  could  not 
have  been  held  to  require  in  effect  that  hard  coal  be 
used.  This  has,  in  fact,  been  the  effect  of  many  smoke- 
prevention  regulations ;  and  in  New  York  a  law  which 
expressly  prohibited  the  burning  of  soft  or  bituminous 
coal  within  four  miles  of  the  city  (now  borough)  hall 
in  Brooklyn  was  sustained. ^^  In  Illinois,  where  the 
courts  have  been  extremely  liberal  in  sustaining  smoke- 
prevention  ordinances,  it  has,  nevertheless,  been  held 
that  evidence  of  the  fact  that  a  heating  plant  "was  of  the 
most  improved  type  and  that  the  owner  had  done  all 
that  skill  could  devise  to  prevent  smoke,"  should  be 
admitted  in  mitigation  of  the  penalty  although  not  for 
the  purpose  of  defeating  recovery  on  the  ground  that 
the  ordinance  was  impossible  of  enforcement.^® 

While  certain  cases  may  be  cited,  therefore,  in  support 
of  the  view  that  smoke  may  not  be  prohibited  if  the 
prohibition  is  impracticable,  there  are  a  number  of 
cases  which,  with  or  without  express  declaration,  pro- 
ceed upon  the  assumption  that  the  emission  of  dense 

24  People  V.  Detroit  etc.  Co.,  (Mich.)  153  N.  W.  799  (1915).  This  decision 
was  not  to  be  regarded  as  a  bar  to  future  action  under  the  ordinance  if  prac- 
tical appliances  should  be  invented. 

25  City  of  Brooklyn  v.  Nassau  El.  R.  R.  Co.,  44  N.  Y.  App.  Div.  462 
(1899);  reaffirmed  in  City  of  New  York  v.  Johns-Manville  Co.,  89  N.  Y. 
App.  Div.  449  (1903)- 

^  City  of  Chicago  v.  Knobel,  232  111.  112  (1908). 


SMOKE  AND  BILLBOARDS  75 

smoke  may  be  prevented  by  mechanical  devices  for 
consuming,  burning,  or  washing  the  smoke,  by  the 
use  of  hard  instead  of  soft  coal,  and  by  proper  stoking. 
The  court  of  appeals  of  the  District  of  Columbia  has 
expressly  averred  that  the  burden  of  showing  the  im- 
possibility of  compliance  and,  therefore,  the  unreason- 
ableness of  the  prohibition  against  smoke,  rests  upon 
him  who  violates  the  regulation.^^ 

That  dense  smoke  may  be  declared  to  be  a  public 
nuisance  and  as  such  may  be  prohibited  has  generally 
been  sustained  as  a  valid  exercise  of  the  police  power.  It 
must  be  admitted,  nevertheless,  that  the  courts  have 
more  frequently  than  not  proceeded  upon  popular  as- 
sumptions rather  than  scientific  facts.  It  has  been  de- 
clared that  smoke  is  "detrimental  to  certain  classes  of 
property  and  business"  and  is  a  ''personal  annoyance  to 
the  public  at  large ;"  ^^  that  it  is  ''most  objectionable  and 
offensive;"  ^^  that  it  is  "well  within  the  police  power  of 
the  state"  because  it  is  "detrimental  to  the  public  wel- 
fare;" ^°  that  it  lies  "on  the  border  line  of  a  public  nuis- 
ance." ^^  In  a  case  recently  decided  by  the  United 
States  Supreme  Court  it  was  not  even  thought  necessary 
to  discuss  the  effects  of  smoke  or  the  public  purpose  to 
be  accomplished  by  its  prohibition.  The  court  simply 
declared  :^^ 

2'  Bradley  v.  District  of  Columbia,  20  App,  D.C.  169  (1902);  reaffirming 
Moses  V.  United  States,  16  App.  D.  C.  428  (1900).  See  also  Sinclair  v. 
District  of  Columbia,  20  App.  D.  C.  336  (1902). 

^  Haripon  v.  City  of  Chicago,  no  111.  400  (1884). 

^^  Department  of  Health  of  the  City  of  New  York  v.  Ebling  Brewing  Co., 
78  N.  Y.  Supp.  II  (1902). 

3°  City  of  Brooklyn  v.  Nassau  El.  R.  R.  Co.,  44  N.  Y.  App.  Div.  462 
(1899). 

^^  Bowers  v.  City  of  Indianapolis,  (Ind.)  81  N.  E.  1097  (1907). 

'2  Northwestern  Laundry  v.  Des  Moines,  239  U.S.  486  (1915). 


76  CITY  PROGRESS  AND  THE  LAW 

So  far  as  the  Federal  Constitution  is  concerned,  we  have  no  doubt 
the  state  may  itself,  or  through  authorized  municipalities,  declare  the 
emission  of  dense  smoke  in  cities  or  populous  neighborhoods  a  nui- 
sance and  subject  to  restraint  as  such;  and  that  the  harshness  of 
such  legislation,  or  its  effect  upon  business  interests,  short  of  a 
merely  arbitrary  enactment,  are  not  valid  constitutional  objections. 
Nor  is  there  any  valid  Federal  constitutional  objection  in  the  fact 
that  the  regulation  may  require  the  discontinuance  of  the  use  of 
property,  or  subject  the  occupant  to  large  expense  in  complying 
with  the  terms  of  the  law  or  ordinance. 

Since  the  scope  of  the  police  power  of  the  states  is 
largely  a  federal  question,  this  declaration,  however 
unsupported  by  argument,  must  be  taken  as  settling 
the  proposition  that  a  prohibition  upon  the  emission 
of  dense  smoke  in  cities  is  a  proper  exercise  of  the  police 
power. 

It  would  be  interesting  to  analyze  and  compare  the 
smoke  prevention  laws  and  ordinances,  which  are  now 
found  in  most  cities,^^  and  to  discuss  some  of  the  difiQ- 
cult  administrative  problems  that  have  arisen  in  con- 
nection with  their  enforcement.  Sufhce  it  to  say  that 
while  considerable  progress  has  been  made,  the  smoke 
problem  has  by  no  means  been  completely  solved  in 
any  city. 

Billboard  regulations 

In  the  opinion  of  many  persons  one  of  the  most  objec- 
tionable features  of  the  modern  American  city  is  the 
unsightliness  of  our  increasingly  flamboyant  billboards. 
'* Modern  civic  art,"  says  a  recent  commentator,  ** coming 
to  the  advertising  problem,  should  feel  not  hostility, 

^  See  Flagg,  City  Smoke  Ordinances  and  Smoke  Abatement,  Bulletin  No. 
49,  United  States  Bureau  of  Mines,  1912. 


SMOKE  AND  BILLBOARDS  77 

but  the  thrill  of  opportunity. "  ^^  It  seems  needless  to  say, 
however,  that  it  requires  unusual  optimism  to  preserve 
one's  thrill  of  opportunity  if  the  rights  of  private  prop- 
erty are  to  be  regarded  as  standing  irrevocably  in  the 
way  of  transforming  that  opportunity  into  realization. 
Numerous  cities  have  attempted  to  deal  with  one  or 
more  aspects  of  the  billboard  problem.  It  may  be  put 
down  at  the  outset  that,  although  courts  have  some- 
times in  the  course  of  their  opinions  referred  to  the  un- 
sightliness  of  billboards,  no  court  has  as  yet  sustained 
a  billboard  ordinance  predicated  solely  upon  aesthetic 
grounds.  On  the  contrary,  every  such  ordinance  has  been 
declared  invalid.  Thus,  an  ordinance  prohibiting  gener- 
ally the  posting  of  advertisements  upon  fences  enclos- 
ing private  property  or  prohibiting  the  erection  of  signs 
upon  private  property  has  been  held  void  in  New  York^^ 
and  New  Jersey.^^  So  a  regulation  of  the  Boston  park 
commissioners  prohibiting  the  maintenance  of  business 
signs  so  near  a  parkway  as  to  be  plainly  visible  to  the 
naked  eye  of  persons  in  the  parkway  was  held  by  the 
supreme  court  of  Massachusetts  to  be  a  taking  of  pri- 
vate property  for  public  use  without  compensation. ^^ 
Even  a  law  prohibiting  advertisements  upon  the  stately 
palisades  of  the  Hudson  River  was  recently  declared  by 
the  supreme  court  of  New  Jersey  to  be  an  invalid  in- 
vasion of  private  property  rights. ^^  More  than  this,  the 
courts  have  declared  void  a  number  of  regulations  which 
aimed  at  the  limitation  or  suppression  of  billboards 

'*  Robinson,  Modern  Civic  Art,  p.  152. 

^^  People  V.  Green,  85  N.  Y.  App.  Div.  400  (1903). 

36  Bill  Posting  Co.  v.  Atlantic  City,  71  N.  J.  L.  72  (1904). 

^"^  Commonwealth  v.  Boston  Advertising  Co.,  188  Mass.  348  (1905). 

38  State  V.  Lamb,  (N.  J.)  98  Atl.  459  (1916). 


78  CITY  PROGRESS  AND  THE  LAW 

Upon  the  ground  that  aesthetic  considerations  were  ap- 
parent even  though  they  were  not  expressly  put  for- 
ward.^^  Indeed,  numerous  courts  have  unquaHfiedly 
declared  that  legislation  for  aesthetic  purposes  is  wholly 
beyond  the  scope  of  the  police  power.  To  quote  from 
a  single  opinion  among  many,  the  supreme  court  of 
California  has  expressed  the  following  views  upon  this 
subject  :*° 

Except  for  the  limited  exemption  conferred  by  Section  3,  the  ef- 
fect of  the  ordinance  is  to  absolutely  prohibit  the  erection  or  mainte- 
nance of  billboards  for  advertising  purposes.-  There  is  no  attempt 
to  restrict  the  operation  of  the  enactment  to  billboards  that  may  be 
insecure  or  otherwise  dangerous,  or  to  advertising  that  may  be 
indecent.  The  town  trustees  have  undertaken  to  make  criminal  the 
maintenance  of  any  billboard,  however  securely  it  may  be  built,  and 
however  unobjectionable  may  be  the  advertising  matter  displayed 
upon  it.  Such  prohibition,  involving  a  very  substantial  interfer- 
ence with  the  rights  of  property,  can  be  justified,  if  at  all,  only 
to  the  extent  that  the  subject-matter  of  the  legislation  is  embraced 
within  the  police  power  of  the  state.  Bearing  in  mind  that  the 
ordinance  does  not  purport  to  have  any  relation  to  the  protection  of 
passers-by  from  injury  by  reason  of  unsafe  structures,  to  the  diminu- 
tion of  the  hazard  of  fire,  or  to  the  prevention  of  immoral  displays, 
we  find  that  the  one  ground  upon  which  the  town  council  may  be 
thought  to  have  acted  is  that  the  appearance  of  billboards  is,  or  may 
be,  offensive  to  the  sight  of  persons  of  refined  taste.  That  the  pro- 
motion of  aesthetic  or  artistic  considerations  is  a  proper  object  of 
governmental  care  will  probably  not  be  disputed.  But,  so  far  as  we 
are  advised,  it  has  never  been  held  that  these  considerations  alone 

3^  City  of  Passaic  v.  Paterson  Bill  Posting  Co.,  72  N.  J.  L.  285  (1905); 
Varney  &  Green  v.  Williams,  155  Cal.  318  (1909);  Bryan  v.  City  of  Chester, 
212  Pa.  259  (1905);  State  v.  Whitlock,  149  N.  C.  542  (1908);  Crawford  v. 
City  of  Topeka,  51  Kan.  756  (1893);  City  of  Chicago  v.  Gunning  System, 
214  111.  628  (1905);  People  ex  rel.  Wineburgh  v.  Murphy,  195  N.  Y.  126 
(1909);  State  V.  Lamb,  (N.J.)  98  Atl.  459  (1916);  Haller  Sign  Works  v. 
Training  School,  249  111.  436  (1911). 

*°  Varney  &  Green  v.  Williams,  155  Cal.  318  (1909)- 


SMOKE  AND  BILLBOARDS  79 

will  justify,  as  an  exercise  of  the  police  power,  a  radical  restriction  of 
the  right  of  an  owner  of  property  to  use  his  property  in  an  ordinary 
and  beneficial  way.  Such  restriction  is,  if  not  a  taking,  pro  tanto 
of  the  property,  a  damaging  thereof,  for  which,  under  Article  I, 
Section  14,  Constitution,  the  owner  is  entitled  to  compensation. 

It  goes  without  saying  that  billboards  may  in  the 
interest  of  public  morals  be  prohibited  from  carrying 
indecent  or  obscene  representations ;  and  that  they  may 
be  regulated  as  to  their  location  and  construction  in  the 
interest  of  the  public  safety.  However,  in  the  earlier 
cases  dealing  with  such  regulations  the  courts  were 
earnest  to  see  that  the  requirements  imposed  had  a  very 
definite  relation  to  such  public  purposes.  Thus  in  Kan- 
sas an  ordinance  which  required  that  every  billboard 
and  fence  used  for  advertising  purposes  should,  if  it 
were  ten  feet  in  height,  be  erected  fifteen  feet  back  of 
the  street  line,  was  held  void.  ''Regulation  may  be 
made,"  said  the  court,  'with  reference  to  the  manner  of 
construction  so  as  to  insure  safety,  but  the  prohibition 
of  the  erection  of  structures  upon  the  lot  lines,  however 
safe  they  might  be,  would  be  an  unwarranted  invasion 
of  private  rights.  "^^  The  same  conclusion  was  reached 
by  the  New  Jersey  ^^  ^nd  the  North  Carolina  ^^  courts  in 
cases  involving  the  validity  of  ordinances  that  prohib- 
ited billboards  within  ten  feet  of  the  street  line  regard- 
less of  the  stability  of  their  construction.  So,  in  Colo- 
rado, a  Denver  ordinance  was  held  invalid  which  lim- 
ited billboards  to  twenty-five  feet  in  length  and  eight 
feet  in  height,  and  required  a  setback  of  ten  feet  from 
the  street  line  and  the  consent  of  adjoining  lot  owners 

*i  Crawford  v.  City  of  Topeka,  51  Kan.  756  (1893). 

**  City  of  Passaic  v.  Paterson  Bill  Posting  Co.,  72  N,  J.  L.  285  (1905). 

«  State  V.  Whitlock,  149  N.  C.  542  (1908). 


8o  CITY  PROGRESS  AND  THE  LAW 

and  of  residents  on  the  opposite  side  of  the  street."*^ 
The  first  case  on  this  subject  in  New  York  involved  the 
validity  of  an  ordinance  of  the  city  of  Rochester  which 
prohibited  the  erection  of  a  billboard  exceeding  six  feet 
in  height  unless  by  express  permission  of  the  common 
council.  This  ordinance,  which  did  not  absolutely  pro- 
hibit billboards  of  greater  height,  was  upheld/^  But  in 
a  later  case  the  New  York  court  of  appeals  refused  to 
sustain  an  ordinance  of  the  city  of  New  York  which 
limited  to  nine  feet  the  height  of  so-called  "sky-signs" 
erecjted  over  or  above  buildings  or  walls.^*^  In  the  view 
of  the  court  this  limitation  bore  no  reasonable  relation  to 
the  safety  of  the  public.  The  Rochester  case  was  dis- 
tinguished, apparently  on  the  ground  that  the  require- 
ment of  a  permit  from  the  council  for  a  billboard  more 
than  six  feet  high  was  merely  a  provision  in  the  interest 
of  public  safety. 

In  191 1  was  decided  the  very  important  case  of  the 
St.  Louis  Gunning  Advertising  Company  v.  City  of  St. 
Louis,^^  which  may  doubtless  be  said  to  have  marked  a 
turning  point  in  the  attitude  of  the  courts  toward  bill- 
board regulation.  The  ordinance  in  question  limited  the 
height  of  billboards  to  fourteen  feet  and  their  maximum 
area  to  500  square  feet,  and  required  that  they  should 
be  erected  fifteen  feet  back  of  the  street  line,  that  their 
ends  should  approach  not  nearer  than  six  feet  to  any 

^CurranBillPosting&DistributingCo.i;.  City  of  Denver,47Col.  221(1910). 

4^  City  of  Rochester  v.  West,  164  N.  Y.  510  (1900).  A  similar  Buffalo 
ordinance  was  sustained  in  Gunning  System  v.  City  of  Buffalo,  75  N.  Y.  App. 
Div.  31  (1902),  and  Whitmier  v.  City  of  Buffalo,  118  Fed.  773  (1902).  See 
also  People  ex  rel.  Standard  Bill  Posting  Co.z/.  Hastings,  207  N.  Y.  763  (1912), 
sustaining  a  similar  ordinance  of  Newburgh. 

4^  People  ex  rel.  Wineburgh  v.  Murphy,  195  N.  Y.  126  (1909). 

^^235  Mo.  99  (iQii)- 


SMOKE  AND  BILLBOARDS      •  8i 

building  or  side  line  of  the  lot,  nor  nearer  than  two  feet 
to  any  other  billboard,  and  that  there  should  be  a  clear- 
ance of  four  feet  between  their  lower  edge  and  the 
ground.  It  is  manifest  that  these  restrictions  were 
somewhat  severe;  but  the  ordinance  was  sustained  in 
its  entirety,  and  a  number  of  new  grounds  were  as- 
signed for  including  such  a  regulation  within  the  scope 
of  the  police  power.  It  was  pointed  out  that  in  addi- 
tion to  the  dangers  to  the  public  safety  due  to  unstable 
construction,  billboards  offered  hiding  places  and  re- 
treats for  criminals  and  all  classes  of  miscreants.  They 
increased  fire  hazards  because  of  the  collection  of  in-- 
flammable  rubbish  behind  them,  and  they  impeded  the 
work  of  firemen  in  extinguishing  fires.  The  public 
morals  of  the  community  were  affected  not  only  by  the 
character  of  the  posters  but  also  by  the  amount  of 
immorality  that  was  carried  on  behind  them.  The 
public  health  was  also  jeopardized  by  the  kind  and 
amount  of  filth  that  was  deposited  in  the  rear  of  bill- 
boards. On  the  ground  of  morals  and  health,  therefore, 
as  well  as  public  safety,  the  ordinance  under  review  was 
sustained  in  an  elaborate  opinion  in  which  the  previous 
cases  upon  the  subject  were  exhaustively  analyzed. 

It  may  be  freely  admitted  that  the  picture  of  bill- 
board evils  was  not  greatly  overdrawn  in  the  opinion 
that  was  handed  down,  and  that  the  requirement  of  an 
opening  at  the  side  line  and  a  four-foot  space  between 
the  ground  and  the  lower  edge  of  such  a  structure  was 
wholly  reasonable.  It  is,  nevertheless,  difBcult  to  see 
how  these  evils  were  in  any  wise  affected  by  the  some- 
what onerous  limitations  upon  the  height  and  area  of 
billboards  or  by  the  requirements  in  respect  to  the  dis- 


82  CITY  PROGRESS  AND  THE  LAW 

tance  back  of  the  street  line.  Surely  it  must  be  con- 
ceded that  an  entirely  safe  structure  of  greater  height 
and  area  than  that  allowed  by  the  ordinance  could  be 
erected  upon  the  street  line,  and  that  the  public  health 
and  morality  would  not  be  advanced  by  any  of  these 
three  requirements.  One  can  scarcely  escape  the  con- 
clusion that  the  court,  being  convinced  of  the  general 
objectionableness  of  these  monstrosities,  and  being  at 
the  same  time  unwilling  to  declare  unreservedly  that 
the  police  power  might  be  used  for  aesthetic  purposes, 
was,  nevertheless,  ready  to  sustain  the  ordinance  with- 
out too  close  an  analysis.  Indeed,  the  learned  judge 
expressed  the  "individual  opinion,"  although  the  case 
was  not  decided  on  so  broad  a  ground,  ''that  this  class  of 
advertising  as  now  conducted  is  not  only  subject  to 
control  and  regulation  by  the  police  power  of  the  state, 
but  that  it  might  be  entirely  suppressed  by  statute,  and 
that,  too,  without  offending  against  either  the  state  or 
federal  constitution." 
/  Prior  to  the  decision  of  this  St.  Louis  case,  an  abso- 
lute limitation  upon  the  height  of  billboards — and  that, 
a  limitation  to  six  feet — had  been  sustained  in  only 
one  important  case.^^  Since  that  date,  however,  the 
decision  in  the  St.  Louis  case  has  been  reaffirmed  in 
Missouri,  ^^  and  somewhat  similar  ordinances  have 
been    upheld    in    North    Carolina,  ^^^    Texas,  ^^    Rhode 

^^  In  re  Wilshire,  103  Fed.  620  (1900). 

*^  Kansas  City  Gunning  Advertising  Co.  v.  Kansas  City,  240  Mo.  659 
191 2);  limiting  height  to  twelve  feet,  requiring  a  twelve-foot  setback,  a  two- 
foot  clearance,  a  three-foot  opening  at  any  wall  or  fence,  and  a  permit. 

^°  State  V.  Staples,  157  N.  C.  637  (1911);  requiring  billboards  to  have  a 
clearance  of  twenty-four  inches  above  the  ground. 

"JE«  parte  Savage,  63  Tex.  285  (191 1);  limiting  height  to  twelve  feet, 
and  requiring  a  three-foot  clearance  and  a  setback  of  five  feet. 


SMOKE  AND  BILLBOARDS  83 

Island,^2  and  Wisconsin.^^  It  remained,  however,  for  the 
supreme  court  of  Illinois  to  permit  the  carrying  of  bill- 
board regulation  one  step  further  by  a  decision  handed 
down  in  December,  1914.^^  This  case  involved  the  va- 
lidity of  a  provision  in  an  ordinance  of  the  city  of  Chi- 
cago which  prohibited  the  erection  of  billboards  ''in  any 
block  or  any  public  street  in  which  one-half  of  the  build- 
ings on  both  sides  of  the  street  are  used  exclusively  for 
residence  purposes  without  first  obtaining  the  consent, 
in  writing,  of  the  owners  or  duly  authorized  agents  of 
said  owners  owning  a  majority  of  the  frontage  of  the 
property,  on  both  sides  of  the  street  in  the  block." 
This  provision,  of  course,  placed  in  the  hands  of  prop- 
erty owners  the  absolute  power  to  defeat  the  erection 
of  a  billboard  in  a  block  given  over  primarily  to  resi- 
dences. 

A  very  similar  ordinance,  which  prohibited  the  erec- 
tion of  billboards  along  any  boulevard  or  pleasure  drive, 
or  street  in  which  three-fourths  of  the  buildings  were 
residences,  without  the  consent  of  three-fourths  of  the 
residents  and  property  owners  in  the  block  in  which  the 
board  was  to  be  erected,  had  previously  been  declared 

"Horton  v.  Old  Colony  Bill  Posting  Co.,  (R.  I.)  90  Atl.  822  (1914), 
limiting  "sky  signs"  to  nine  and  one-half  feet  in  height  (eleven  and  one-half 
if  on  supports),  twenty  feet  in  length,  with  open  spaces  at  the  ends;  and 
limiting  ground  signs  to  the  same  height  £ind  to  thirty-six  feet  in  length, 
and  requiring  a  setback,  under  certain  conditions  of  construction,  equal 
to  the  height  of  boards  over  six  feet  high,  and  a  two-foot  opening  between 
billboards. 

"  Cream  City  Bill  Posting  Co.  v.  City  of  Milwaukee,  158  Wis.  86  (1914); 
requiring  a  clear  space  at  the  ends  of  all  roof  and  coping  signs  (for  firemen) , 
and  for  ground  signs  a  clearance  of  not  less  than  three  nor  more  than  ten 
feet,  construction  of  incombustible  material  within  the  city  fire  limits,  and 
strength  to  withstand  wind  pressure  of  forty  pounds.  This  ordinance  was 
sustained  even  as  to  its  retroactive  application. 

"  Thomas  Cusack  Co.  v.  City  of  Chicago,  (111.)  108  N.  E.  340  (1914). 


84  CITY  PROGRESS  AND  THE  LAW 

void  by  the  Illinois  court.^^  "The  purpose,'*  said  the 
court,  "seems  to  be  mainly  sentimental,  and  to  prevent 
sights  which  may  be  offensive  to  the  aesthetic  sensi- 
bilities of  certain  individuals."  An  exercise  of  the  police 
power  for  such  a  purpose  could  not  be  sustained.  So 
also,  and  for  the  same  reason,  a  statute  which  uncon- 
ditionally prohibited  the  erection  of  signs  for  advertis- 
ing purposes  within  five  hundred  feet  of  any  park  or 
boulevard  had  been  invalidated  by  the  same  court.^^ 
But  the  above-mentioned  provision  of  the  latest  ordi- 
nance on  this  subject  was  upheld,  although  the  previous 
cases  were  not  overruled  but  "distinguished".  The 
court  argued  that  since  residence  districts  are  "not  so 
well  protected  with  fire  extinguishing  apparatus"  and 
are  "not  afforded  as  full  police  protection  as  other  dis- 
tricts," and  since  billboards  "increase  the  hazards  of 
fire"  and  offer  "protection  to  disorderly  and  lawbreaking 
persons,"  regulations  peculiarly  applicable  to  residence 
districts  were  justifiable.  Reliance  was  also  placed,  as 
in  the  St.  Louis  case,  upon  the  relation  of  billboards  to 
public  health  and  to  public  morals.  As  to  the  require- 
ment of  the  consent  of  the  property  owners  the  court 
said  that  "in  respect  to  occupation  and  structures,  the 
location  and  maintenance  of  which  are  subject  to  reg- 
ulation under  the  police  power  of  the  municipality,  a 
requirement  of  frontage  consents  of  property  owners, 
within  reasonable  limits,  is  a  proper  mode  of  exercising 
(^  the  power  of  regulation."  It  is  manifest,  however,  that 
I  upon  the  line  of  argument  pursued  by  the  court  an 
absolute  prohibition  of  billboards  in  residential  districts 

^  City  of  Chicago  v.  Gunning  System,  214  111.  628  (1905)- 
"  Haller  Sign  Works  v.  Training  School,  249  111.  436  (191 1). 


SMOKE  AND  BILLBOARDS  85 

could  be  sustained.  This  permit  to  erect  with  the  prop- 
erty owners'  consent  was  merely  a  concession  in  miti- 
gation of  the  complete  piohibition  that  was  possible 
under  the  police  power. 

In  this  case  the  court  carefully  avoided  resting  upon 
aesthetic  consideration.  It  is  submitted,  nevertheless, 
that  every  one  of  the  purposes  mentioned  by  the  court 
as  being  within  the  purview  of  the  provision  in  question 
could  have  been  accomplished  by  regulation  short  of 
prohibition,  with  or  without  the  consent  of  property 
owners.  The  requirement  that  billboards  be  con- 
structed of  fireproof  materials,  without  obstructive 
supports,  and  with  sufficient  clearance  above  the  ground 
to  prevent  the  harboring  of  lawbreakers  and  immoral 
persons,  or  the  collection  of  inflammable  rubbish  or 
filth  would  have  accomplished  every  specific  purpose 
mentioned  by  the  court.  Again,  therefore,  it  must  be 
concluded  that  the  court  was  actually  influenced  by 
considerations  broader  than  those  that  were  actually 
put  forward. 

The  decision  in  this  Illinois  case  was  affirmed  by  the 
United  States  Supreme  Court  upon  grounds  even 
broader  than  those  advanced  by  the  supreme  court  of 
Illinois.^^  Referring  to  the  evidence  in  respect  to  in- 
sufficient fire  and  police  protection  in  residence  districts, 
which  the  Illinois  court  held  to  have  been  erroneously 
excluded  at  the  trial,  the  supreme  court  declared  with- 
out reserve: 

Neglecting  the  testimony  which  was  excluded  by  the  trial  court, 
there  remains  sufficient  to  convincingly  show  the  propriety  of 
putting  billboards,  as  distinguished  from    buildings    and    fences, 

67  Thomas  Cusack  Co.  v.  City  of  Chicago,  242  U.  S.  526  (1917). 


86  CITY  PROGRESS  AND  THE  LAW 

in  a  class  by  themselves  (St.  Louis  Gunning  Advertising  Co.  v_ 
St.  Louis,  235  Mo.  99,  137  S.  W.  929),  and  to  justify  the  pro- 
hibition against  their  erection  in  residence  districts  of  a  city  in 
the  interest  of  the  safety,  morality,  health,  and  decency  of  the  com- 
munity. 

The  court  evidently  did  not  think  it  necessary  to  dis- 
cuss whether  these  several  interests  could  or  could  not 
be  protected  by  regulation  short  of  prohibition.  In 
respect  to  the  consent  of  property  owners  the  court 
went  on : 

The  claim  is  palpably  frivolous  that  the  validity  of  the  ordinance 
is  impaired  by  the  provision  that  such  billboards  may  be  erected  in 
such  districts  as  are  described,  if  the  consent  in  writing  is  obtained  of 
the  owners  of  a  majority  of  the  frontage  on  both  sides  of  the  street  in 
any  block  in  which  such  billboard  is  to  be  erected.  The  plaintiff  in 
error  cannot  be  injured,  but  obviously  may  be  benefited,  by  this 
provision,  for  without  it  the  prohibition  of  the  erection  of  such  bill- 
boards in  such  residence  sections  is  absolute.  He  who  is  not  injured 
by  the  operation  of  a  law  or  ordinance  cannot  be  said  to  be  deprived 
by  it  of  either  constitutional  right  or  of  property.  Tyler  v.  Judges  of 
Ct.  of  Registration,  179  U.  S.  405,  45  L.  ed.  252,  21  Sup.  Ct. 
Rep.  206;  Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S.  531, 
58  L.  ed.  713,  34  Sup.  Ct.  Rep.  359.  To  this  we  may  add  that  such  a 
reference  to  a  neighborhood  of  the  propriety  of  having  carried  on 
within  it  trades  or  occupations  which  are  properly  the  sub- 
ject of  regulation  in  the  exercise  of  the  police  power  is  not 
uncommon  in  laws  which  have  been  sustained  against  every  pos- 
sible claim  of  unconstitutionality,  such  as  the  right  to  maintain 
saloons  (Swift  v.  People,  162  111.  534,  33  L.  R.  A.  470, 44  N.  E.  528), 
and  as  to  the  location  of  garages  (People  ex  ret.  Busching  v.  Erics- 
son, 263  111.  368,  L.  R.  A.  1915  D,  607,  105  N.  E.  315,  Ann.  Cas. 
191 5  C,  183).  Such  treatment  is  plainly  applicable  to  offensive 
structures.^3 

^'  The  case  was  distinguished  from  Eubank  v.  City  of  Richmond,  226 
U.  S.  137  (191 2),  on  the  ground  that  in  that  case  the  ordinance  permitted 


SMOKE  AND  BILLBOARDS  87 

The  judgments  reached  in  these  recent  cases  are, 
without  doubt,  eminently  wise  and  proper.  They  give 
high  hope  for  the  future  possibiHties  of  sensible  control 
over  ill-placed  and  garishly  offensive  billboards.  At  the 
same  time,  there  may  be  cause  for  regret  that  it  has 
seemed  necessary  to  permit  the  partial  suppression  of 
billboards  by  more  or  less  specious  indirection — by  reg- 
ulations that  are  manifestly  largely  in  the  nature  of 
subterfuges.  This  brings  us  to  consider  a  few  of  the 
suggestions  that  have  been  put  forward  as  substantial 
grounds  upon  which  billboards  might  be  strictly  reg- 
ulated or  suppressed.  It  has  been  pointedly  said  that 
since  offensive  noises  and  odors  may  be  restrained  under 
the  police  power,  thus  protecting  the  nose  and  the  ear, 
a  similar  protection  to  the  eye  would  only  carry  a 
recognized  principle  to  further  application.^^  There  is, 
perhaps,  considerable  force  in  this  analogy.  It  should 
be  noted,  however,  that  noisy  and  odoriferous  estab- 
lishments, where  they  are  not  regarded  as  merely  private 
nuisances,  are  prohibited  as  public  nuisances  primarily 
as  to  their  location,  and  that  the  essence  of  their 
value  does  not  ordinarily  depend  upon  a  particular  site. 
Moreover,  the  offensive  noise  or  odor  is  a  collateral 
incident  rather  than  a  prime  purpose.  In  the  case  of 
billboards,  on  the  other  hand,  value  arises  essentially 
from  location ;  the  meeting  of  the  eye,  whether  offensive 
or  not,  is  not  an  incident  but  the  whole  purpose.  A 
prohibition  in  either  case  destroys  an  element  of  prop- 

two-thirds  of  the  lot  owners  to  impose  restrictions  in  the  nature  of  a  building 
line  upon  other  property  owners  in  this  block,  while  this  ordinance  "permits 
one-half  of  the  lot  owners  to  remove  a  restriction  [which  might  have  been 
made  absolute]  from  the  other  property  owners."  Infra,  111-113. 
^'  Freund,  Police  Power,  p.  166;  20  Harvard  Law  Review,  35. 


88  CITY  PROGRESS  AND  THE  LAW 

erty  value;  but  in  the  case  of  billboards  it  also  destroys 
a  business.®^ 

Another  theory  that  has  been  offered  is  that  land  is 
valuable  for  building  purposes,  not  because  of  anything 
inherent  in  the  land,  but  because  of  its  * 'projection 
value"  into  the  street  and  upon  the  land  of  other  per- 
sons. Since  the  government  is  competent  to  control 
the  uses  of  the  streets  and  to  prevent  trespass  upon 
private  property,  it  is  urged  that  the  government  can 
upon  the  same  ground  control  this  "projection  value" — 
that  it  can,  in  other  words,  prohibit  a  landowner  from 
"projecting"  the  sight  of  an  advertisement  into  the 
streets  or  upon  others'  property.  ^^  Of  course  the  logic 
of  this  theory,  as  premise  for  a  rule  of  law,  would  be  to 
recognize  in  the  government  practically  complete  power 
to  control  the  uses  of  private  property  in  the  interest  of 
community  aesthetics.  An  inartistic  building  fagade 
projects  itself  into  the  street  no  less  than  a  billboard; 
it  may  be  quite  as  offensive. 

Still  another  line  of  argument,  which  cannot  be  fully 
explained  here,  proceeds  from  the  premise  that  private 
property  rights  are  of  two  kinds,  "permissive"  and  "pro- 
tected," and  that  while  a  permissive  right  can  be  exer- 
cised, a  protected  right,  which  consists  of  a  right  of 

*"  Professor  Freund  argues  on  the  other  side  that  "offensive  manufactures 
are  useful,  and  the  offense  unintentional  and  inevitable,  whereas  in  the  case 
of  an  advertisement  the  owner  claims  the  right  to  obtrude  upon  the  public 
an  offensive  sight  which  they  do  not  want,  and  which  but  for  this  undesired 
obtrusion  would  not  be  of  the  slightest  value  to  him."  The  strength  of  this 
argument  depends  largely  upon  the  definition  of  the  word  "useful."  Adver- 
tisements are  certainly  "useful"  as  a  medium  of  business — perhaps  quite  as 
useful,  economically  speaking,  as  are  certain  manufactures. 

'1  See  remarks  of  Mr.  Adam  Emory  Albright  in  Bulletin  of  the  City  Club 
of  Chicago,  Dec.  i6,  1912. 


SMOKE  AND  BILLBOARDS  89 

possession  and  a  right  in  the  physical  condition  of  the 
property,  cannot  be  exercised  although  it  can  be  vio- 
lated. ^^  It  is  urged  that  the  constitutional  prohibition 
against  the  taking  of  private  property  for  a  public  pur- 
pose without  just  compensation  applies  only  to  pro- 
tected rights.  Under  this  view  billboard  regulations  or 
suppression  may  be  sustained  as  a  proper  exercise  of 
the  power  of  the  government  to  regulate  or  withdraw 
that  which  it  permits,  and  to  create  new  protected 
rights  such  as  the  right  of  mental  security.  The  police 
power  has  nothing  to  do  with  the  matter  unless  prac- 
tically the  entire  law  of  wrongs  be  considered  as  de- 
pendent upon  that  power. 

Finally  may  be  mentioned  the  argument  that  bill- 
boards affect  the  value  of  adjacent  property  to  its  dis- 
advantage, and  that  the  police  power  may  be  exercised 
in  the  interest  of  stabilizing  realty  values.  At  this  point 
it  is  sufficient  to  remark  that  the  exercise  of  the  police 
power  for  this  purpose  has  not  as  yet  been  accepted  by 
the  courts.®^ 

In  a  case  decided  by  the  supreme  court  of  the  Philip- 
pines ^^  in  December,  191 5,  a  statute  authorizing  the 
removal  of  billboards  was  upheld  upon  the  express 
ground  that  the  police  power  may  be  exercised  for 
aesthetic  purposes.  But  the  theory  of  ''projection  value" 
and  the  argument  that  offensive  sights  are  in  the  same 
category  as  offensive  noises  and  odors  were  also  ad- 
vanced.   Since  ''the  real  and  sale  value  of  the  billboard 

^2  Terry,  Advertising  Signs  on  Properly,  in  24  Yale  Law  Journal,  Nov. 
1914,  p.  I. 

«8  Infra,  1 19-123, 

«*  Churchill  v.  Collector  of  Internal  Revenue,  14  Official  Gazette  of  the 
Philippines,  p.  383,  February  16,  19 16. 


90  CITY  PROGRESS  AND  THE  LAW 

is  its  proximity  to  the  public  thoroughfares,"  its  regula- 
tion or  destruction  "is  not  so  much  a  regulation  of 
private  property  as  it  is  a  regulation  of  the  use  of  the 
streets  and  other  public  thoroughfares.'*  And  since  the 
suppression  of  noises  and  smells,  although  "usually 
upheld  on  the  theory  of  safeguarding  the  public  health," 
have,  in  fact,  "little  bearing  upon  the  health  of  the 
normal  person,  but  a  great  deal  to  do  with  his  peace  of 
mind,"  it  is  "quite  demonstrable"  that  "proper 
ministration"  to  his  sense  of  sight  "conduces  as  much 
to  his  contentment  as  the  care  bestowed  upon  the 
senses  of  hearing  or  smell,  and  probably  as  much  as 
both  together."  In  respect  to  the  contrary  views 
expressed  by  American  state  courts,  the  Philippine  court 
declared : 

It  may  be  that  the  courts  in  the  United  States  have  committed 
themselves  to  a  course  of  decisions  with  respect  to  billboard  adver- 
tising the  full  consequences  of  which  were  not  perceived,  for  the  rea- 
son that  the  development  of  the  business  has  been  so  recent  that  the 
objectionable  features  of  it  did  not  present  themselves  to  the  courts 
or  to  the  people.  We  in  this  country  have  the  benefit  of  the  experi- 
ence of  the  people  of  the  United  States  and  may  make  our  legislation 
preventive  rather  than  corrective. 

It  seems  fairly  probable  that  in  the  course  of  time 
American  courts  will  reverse  their  earlier  decisions  and 
frankly  include  aesthetics  among  the  subjects  for  which 
the  police  power  may  be  properly  exercised.  Already 
there  are  signs  of  this  eventuality.  As  the  supreme 
court  of  Maryland  remarked  in  1908,  "it  may  be  that 
in  the  development  of  a  higher  civilization,  the  culture 
and  refinement  of  the  people  has  reached  the  point 
where  the  educational  value  of  the  fine  arts,  as  expressed 


SMOKE  AND  BILLBOARDS  91 

and  embodied  in  architectural  symmetry  and  harmony, 
is  so  well  recognized  as  to  give  sanction,  under  some 
circumstances,  to  the  exercise  of  this  power  even  for 
such  purposes."*^ 

•*  Cochran  r.  Preston,  108  Md.  220  (is>o8).    See  also  Attorney  General  v. 
Williams.  174  Mass.  476  (1899)  at  pp.  479*  480;  ii^a,  94, 107. 


CHAPTER  IV 

CITY  PLANNING— BUILDING  HEIGHTS 
AND  ZONING 

There  are  at  least  three  policies  connected  with  the 
modem  movement  for  the  better  planning  of  cities 
which  give  rise  to  interesting  and  important  questions 
of  law.  One  of  these  is  the  regulation  of  the  heights  of 
buildings;  another  is  the  zoning  or  districting  of  cities 
for  various  purposes;  and  the  third  is  the  condemnation 
of  property  in  excess  of  what  is  actually  needed  for 
specific  public  improvements. 

Limitation  on  the  height  of  buildings 

More  than  thirty  years  ago  the  legislature  of  the 
state  of  New  York  enacted  what  was  probably  the 
first  law  in  the  United  States  dealing  with  the  subject 
of  the  height  to  which  buildings  might  be  erected  in 
cities.  This  statute  provided  that  in  the  city  of  New 
York  no  dwelling  house  or  house  to  be  used  as  a  dwelling 
for  more  than  one  family  should  "exceed  seventy  feet 
upon  all  streets  and  avenues  not  exceeding  sixty  feet 
in  width  and  eighty  feet  upon  all  streets  and  avenues 
exceeding  sixty  feet  in  width. "^  Since  that  date  a  large 
number  of  statutes  and  ordinances  have  been  enacted 
imposing  restrictions  upon  the  heights  of  buildings  in 
American  cities;  ^  but  these  regulations  vary  in  both 

^  Laws  of  New  York,  1885,  ch.  454. 

"^  For  statistics  of  ordinances  of  this  kind  see  Koester,  Modern  City  Plan- 
ning and  Maintenance,  pp.  1 71-174. 


BUILDING  HEIGHTS  AND  ZONING  93 

content  and  purpose.  A  few  of  them,  as  in  the  case  of 
the  early  New  York  law  just  noted,  impose  limits  on 
the  basis  of  the  use  of  the  building.  In  others  heights 
are  regulated  in  accordance  with  the  character  of  con- 
struction, chiefly  in  the  interest  of  protection  against 
fire.  In  a  few  of  them  building  heights  are  fixed  with 
reference  to  location.  But  a  majority  of  these  regula- 
tions simply  impose  a  maximum  limit  of  height,  ex- 
pressed either  in  feet  or  in  the  number  of  stories  allowed, 
while  in  some  cases  the  height  within  the  maximum  is 
further  fixed  in  some  ratio  to  the  street  width.  In 
general  it  may  be  said  that  American  limitations  upon 
building  heights  are  exceedingly  liberal — far  more  so 
than  those  usually  imposed  in  European  cities. 

Whether  limitations  of  this  kind  are  properly  within 
the  scope  of  the  police  power  has  been  contested  in  a 
few  important  cases.  The  New  York  law  of  1885,  for 
example,  was  before  the  courts  on  the  question  as  to 
whether  hotels  were  included  within  its  terms.  On  the 
general  proposition  of  limiting  the  height  of  dwelling 
houses  and  of  flat  or  apartment  houses,  which  was 
apparently  not  at  issue  in  the  case,  the  court  was  con- 
tent to  say  that  there  was  *'no  doubt  of  the  competency 
of  the  legislature  in  the  exercise  of  the  police  power 
under  the  constitution  to  pass  such  an  act."^  A  somewhat 
famous  case  on  this  subject  was  that  in  which  the 
supreme  court  of  Massachusetts  sustained  a  statute  of 
1898  that  limited  to  ninety  feet  in  height  all  buildings 

3  People  ex  rel.  Kemp  v.  D'Oench,  iii  N.  Y.  359  (1888).  See  also  People 
ex  rel.  Brown  v.  Brady,  26  N.  Y.  Misc.  82  (1899),  where  it  was  held  that  the 
act  of  1885  had  not  been  repealed  by  acts  of  1892,  1896,  £ind  1897  requiring 
fireproof  construction  for  buildings  over  certain  heights.  The  validity  of 
these  later  statutes  was  not  questioned. 


94  CITY  PROGRESS  AND  THE  LAW 

fronting  on  Copley  Square  in  Boston.^  In  this  instance 
the  statute  provided  for  compensatory  damages;  but 
the  court  did  not  hesitate  to  say  that  "in  view  of  the 
kind  of  buildings  erected  on  the  streets  about  Copley 
Square  and  the  uses  to  which  some  of  these  buildings 
are  put,  it  would  be  hard  to  say  that  this  statute  might 
not  have  been  passed  in  the  exercise  of  the  police  power 
as  other  statutes  regulating  the  erection  of  buildings  in 
cities  are  commonly  passed."^  In  the  opinion  that  was 
written  the  court  very  nearly  declared  that  the  power 
of  eminent  domain,  if  not  indeed  the  police  power, 
might  be  exercised  in  the  interest  of  municipal  aesthet- 
ics. ^  It  is  probable,  however,  that  the  case  cannot  be 
said  to  have  gone  so  far;  and  it  is  certain  that  other 
Massachusetts  cases  have  denied  this  proposition,  so 
far  at  least  as  the  police  power  is  concerned.^ 

Encouraged  evidently  by  the  success  of  this  experi- 
ment with  reference  to  Copley  Square,  the  Massachu- 
setts legislature  provided  in  1904  for  the  general  limita- 

*  For  an  account  of  how  this  law  came  to  be  enacted  see  Robinson,  The 
Improvement  of  Towns  and  Cities,  pp.  69,  70. 

^  Attorney  General  v.  Williams,  174  Mass.  476  (1899).  See  also  Attorney- 
General  V.  Williams,  178  Mass.  330  (1901). 

^  After  a  very  general  discussion  concerning  aesthetic  considerations  in 
parks  the  courts  said:  "It  is  argued  by  the  defendants  that  the  Legislature 
in  imposing  this  statute  was  seeking  to  preserve  the  architectural  symmetry 
of  Copley  Square.  If  this  is  a  fact,  and  if  the  statute  is  merely  for  the  bene- 
fit of  individual  property  owners,  the  purpose  does  not  justify  the  taking 
of  a  right  in  land  against  the  will  of  the  owner.  But  if  the  Legislature,  for 
the  benefit  of  the  public,  was  seeking  to  promote  the  beauty  and  attractive- 
ness of  a  public  park  in  the  capital  of  the  Commonwealth  and  to  prevent 
unreasonable  encroachments  upon  the  light  and  air  which  it  had  previously 
received,  we  cannot  say  that  the  law-making  power  might  not  determine 
that  this  was  a  matter  of  such  public  interest  as  to  call  for  an  expenditure 
of  public  money,  and  to  justify  the  taking  of  private  property." 

^  Commonwealth  v.  Boston  Advertising  Co.,  188  Mass.  348  (iQOS); 
Welch  V,  Swasey,  193  Mass.  364  (1907)- 


BUILDING  HEIGHTS  AND  ZONING  95 

tion  of  building  heights  in  the  city  of  Boston  without 
any  provision  for  damages.  In  upholding  this  law  the 
highest  court  of  the  state  remarked  that  the  police 
power  could  certainly  be  exercised  *'in  the  interest  of 
the  public  health,  public  morals  and  public  safety," 
and  that  ''with  considerable  strictness  of  definition ^  the 
general  welfare  may  be  made  a  ground,  with  others,  for 
interference  with  rights  of  property,  in  the  exercise  of 
the  police  power/'^  **The  erection  of  very  high  build- 
ings," said  the  court,  "may  be  carried  so  far  as  materially 
to  exclude  sunshine,  light  and  air,  and  thus  to  affect  the 
public  health.  It  may  also  increase  the  danger  to  per- 
sons and  property  from  fire  and  be  a  subject  for  legis- 
lation on  that  ground."  Denying  that  the  police  power 
could  be  used  ''for  purely  aesthetic  objects,"  the  court, 
nevertheless,  said  that  if  "the  primary  and  substantive 
purpose  of  the  legislation"  is  in  the  interest  of  such  a 
matter  as  the  public  health  or  safety,  ''considerations 
of  taste  and  beauty  may  enter  in  as  auxiliary." 

This  case  was  carried  to  the  United  States  Supreme 
Court  where  the  views  of  the  Massachusetts  court  were 
generally  sustained.^  Although  particular  emphasis  was 
laid  upon  the  matter  of  fire  protection,  the  court  declared 
broadly  that  "regulations  in  regard  to  the  height  of 
buildings,  and  in  regard  to  their  mode  of  construction 
in  cities,  made  by  legislative  enactments  for  the  safety, 
comfort  or  convenience  of  the  people  and  for  the  bene- 
fit  of  property  owners  generally,  are  valid. "^^ 

^  Welch  V.  Swasey,  193  Mass.  364  (1907). 

^  Welch  V.  Swasey,  214  U.  S.  91  (1908). 

^°See  also  Hudson  Water  Co.  v.  McCarter,  209  U.  S.  349  (1907),  where 
the  court  declared,  arguendo:  "For  instance,  the  police  power  may  limit 
the  height  of  buildings,  in  a  city,  without  compensation   .      .      .    But  if  it 


96  CITY  PROGRESS  AND  THE  LAW 

In  a  Maryland  case  it  was  intimated  that  a  statute 
limiting  to  seventy  feet  the  height  of  buildings  fronting 
on  a  public  square  in  Baltimore  might  be  sustained  on 
aesthetic  grounds.^^  But  the  court  found  "a  more  sub- 
stantial reason"  in  the  suggestion  that  the  purpose  of 
the  law  was  '*to  protect  the  handsome  buildings  and 
their  contents  in  that  vicinity,  and  also  the  works  of  art 
clustered  there,  from  the  ravages  of  fire."  And  specific 
reference  was  made  to  the  damage  that  resulted  from 
tall  buildings  in  the  famous  Baltimore  fire  of  1904. 

Although  the  decisions  upon  this  subject  are  not 
numerous,  they  are  all  one  way.  Moreover,  the  vast 
majority  of  ordinances  regulating  building  heights  have 
never  been  questioned  at  all.  It  may  be  taken  as  set- 
tled, therefore,  that  limiting  the  heights  of  buildings  is  a 
proper  exercise  of  the  police  power  in  the  interest  prima- 
rily of  health  and  safety.  It  should  be  remarked,  how- 
ever, that  no  city  has  as  yet  attempted  to  impose,  under 
the  police  power,  a  limit  that  would  affect  buildings  al- 
ready constructed.  12  Jt  is  impossible  to  say  what  the  at- 
titude of  the  courts  would  be  toward  such  an  interference 
with  actual  rather  than  with  potential  property  values. 

Zones  from  which  offensive  trades  and  industries 
are  excluded 

From  time  immemorial  cities  have  been  laid  off  into 
districts  for  governmental  and  administrative  purposes. 

should  attempt  to  limit  the  height  so  far  as  to  make  an  ordinary  building 
lot  wholly  useless,  the  rights  of  property  would  prevail  over  the  other  public 
interest,  and  the  police  power  would  fail.  To  set  such  a  limit  would  need 
compensation  and  the  power  of  eminent  domain." 

"  Cochran  v.  Preston,  io8  Md.  220  (1908). 

^2  The  Copley  Square  legislation  affected  a  building  under  construction ; 
but  in  this  instance  damages  were  allowed. 


BUILDING  HEIGHTS  AND  ZONING  97 

Moreover,  the  policy  of  creating  districts  within  which 
certain  restrictions  are  placed  upon  the  private  prop- 
erty is  by  no  means  of  very  recent  origin.  For  many 
years,  for  example,  most  cities  have  established  fire 
districts  within  which  the  erection  of  wooden  buildings 
has  been  prohibited  and  other  requirements  in  respect 
to  building  construction  have  been  imposed.  Such 
regulations  have  been  usually  sustained  as  measures 
adopted  in  the  interest  of  the  public  safety;  and  the 
reasonableness  of  establishing  districts  for  this  purpose, 
based  upon  obvious  variations  in  the  congestion  of 
buildings  in  different  parts  of  the  city,  has  scarcely 
been  questioned. ^^  For  a  long  time,  also,  cities  have 
exercised  the  power  of  abating  private  nuisances  in  the 
form  of  offensive  trades  and  industries;  and  specific 
acts  of  abatement  have  often  resulted  in  the  relocation 
of  such  trades  or  industries  in  some  other  part  of  the 
city;  for  a  private  nuisance  in  a  thickly  settled  dis- 
trict need  not  necessarily  be  a  nuisance  elsewhere. 
On  the  same  principle  specified  noxious  establishments, 
if  they  affect  an  entire  community  within  the  city, 
may  be  excluded  from  a  designated  district  or  districts 
as  a  public  nuisance.^^  As  early  as  1774,  for  example, 
the  tanners  of  New  York  City  were  ordered  to  move  out 
of  the  congested  part  of  the  city.    It  is,  however,  only 

"  McQuillin,  Municipal  Corporations,  sec.  948 ;  City  of  Olympia  v.  Man, 
I  Wash.  389  (1890);  Mt.  Vernon  First  National  Bank  v.  Sarlls,  129  Ind. 
201  (1891). 

^*  There  is  perhaps  a  slight  difference  in  principle  between  exclusion  from 
specified  districts  and  assignment  to  designated  limits.  If  excluded  from 
specified  districts,  the  establishment  may  yet  be  abated  elsewhere  as  a 
private  or  common  law  nuisance.  If  assigned  to  designated  limits,  the 
question  may  arise  as  to  the  power  of  the  city  to  legalize  a  nuisance.  Freund, 
Police  Powtr,  sec.  179. 


98  CITY  PROGRESS  AND  THE  LAW 

in  comparatively  recent  years  that  cities  have  attempted 
to  deal  generally  with  such  establishments  by  the  policy 
of  exclusion  from  districts ;  and  the  courts  have  invari- 
ably upheld  such  regulations  as  a  proper  exercise  of  the 
police  power.  Thus  an  ordinance  prohibiting  the 
slaughtering  of  cattle  within  certain  portions  of  a  city 
has  been  sustained  in  New  York.^^  In  Indiana  an  ex- 
clusion of  saloons  from  the  residence  sections  of  cities 
is  valid. ^^  In  Illinois  ordinances  were  sustained  which 
prohibited,  without  the  consent  of  property  owners,  the 
maintenance  of  a  public  garage  in  a  residence  block 
or  in  places  in  which  two-thirds  of  the  buildings  within 
a  radius  of  five  hundred  feet  were  residences;  ^^  and  in 
New  York  an  ordinance  prohibiting  a  public  garage 
within  fifty  feet  of  a  school  was  likewise  upheld. ^^  So 
also  in  Illinois  an  ordinance  prohibiting  the  keeping  of 
a  livery  stable  in  a  residence  block  except  upon  the 
consent  of  a  majority  of  the  property  owners  on 
both  sides  of  the  street  has  been  upheld. ^^  In  a 
recent  case  sustaining  an  ordinance  prohibiting  liv- 
ery   stables    within    a    designated    district    of    Little 

15  Cronin  v.  People,  82  N.  Y.  318  (1880). 

1^  Shea  V.  City  of  Muncie,  148  Ind.  14  (1896). 

"  People  ex  rel.  Busching  v.  Ericsson,  (111.)  105  N.  E.  315  (1914).  where 
the  court  declared  that  while  a  public  garage  is  not  a  nuisance  per  se,  it  "is 
of  such  a  character  that  it  becomes  a  nuisance  when  conducted  in  particular 
localities  and  under  certain  conditions."  People  ex  rel.  Keller  v.  Village  of 
Oak  Park  (111.).  107  N.  E.  636  (1914). 

18  Matter  of  Mcintosh  v.  Johnson,  211  N.  Y.  265  (1914)- 

13  City  of  Chicago  v.  Stratton,  (111.)  44  N.  E.  853  (1896).  But  in  Missouri 
a  somewhat  similar  ordinance,  which  applied,  however,  to  any  block,  whether 
residence  or  otherwise,  was  held  void.  City  of  St.  Louis  v.  Russell,  116  Mo. 
248  (1893).  Under  this  ordinance  livery  stables  might  have  been  totally 
excluded  from  the  city. 


BUILDING  HEIGHTS  AND  ZONING  99 

Rock,   Arkansas,  the  United  States  Supreme  Court 
declared :  ^o 

Granting  that  it  [the  livery  business]  is  not  a  nuisance  per  se,  it  is 
clearly  within  the  police  power  of  the  state  to  regulate  the  business, 
and  to  that  end  to  declare  that  in  particular  circumstances  and  in 
particular  localities  a  livery  stable  shall  be  deemed  a  nuisance  in 
fact  and  in  law,  provided  this  power  is  not  exerted  arbitrarily,  or 
with  unjust  discrimination,  so  as  to  infringe  upon  rights  guaranteed 
by  the  14th  Amendment.  For  no  question  is  made,  and  we  think 
none  could  reasonably  be  made,  but  that  the  general  subject  of  the 
regulation  of  livery  stables,  with  respect  to  their  location  and  the 
manner  in  which  they  are  to  be  conducted  in  a  thickly  populated 
city,  is  well  within  the  range  of  the  power  of  the  state  to  legislate  for 
the  health  and  general  welfare  of  the  people.  While  such  regulations 
are  subject  to  judicial  scrutiny  upon  fundamental  grounds,  yet  a  con- 
siderable latitude  of  discretion  must  be  accorded  to  the  lawmaking 
power;  and  so  long  as  the  regulation  in  question  is  not  shown  to  be 
clearly  unreasonable  and  arbitrary,  and  operates  uniformly  upon  all 
persons  similarly  situated  in  the  particular  district,  the  district  itself 
not  appearing  to  have  been  arbitrarily  selected,  it  cannot  be  judi- 
cially declared  that  there  is  a  deprivation  of  property  without  due 
process  of  law,  or  a  denial  of  the  equal  protection  of  the  laws,  within 
the  meaning  of  the  14th  Amendment. 

It  seems  needless  to  say,  however,  that  an  ordinance 
of  this  kind  must  not  create  unwarranted  discrimina- 
tions. Thus  the  California  supreme  court  has  recently 
held  void  a  Los  Angeles  ordinance  establishing  a  dis- 
trict from  which  livery  stables  were  excluded.  The 
ordinance  was  viewed  as  being  ''oppressive  and  dis- 
criminatory in  creating  a  small  district  in  which  plaintiff 
has  erected  and  is  maintaining  his  stable,  and  prohibit- 

«»  Reinman  v.  Little  Rock,  237  U.  S.  171  (1915).  In  Patout  Bros.  v.  Mayor 
etc.  of  New  Iberia,  (La.)  70  So.  616  (1916),  a  similar  ordinance  was  declared 
void  upon  the  ground  that  the  city  lacked  the  charter  authority  to  enact 
such  an  ordinance. 


loo  CITY  PROGRESS  AND  THE  LAW 

ing  him  from  longer  maintaining  it,  while  in  other 
districts,  *more  thickly  populated  and  densely  settled 
and  exclusively  devoted  to  residence  purposes',  permits 
for  the  conduct  of  a  like  business  are  liberally  granted,  "^i 
It  will  be  observed  that  every  one  of  the  exclusion 
ordinances  to  which  attention  has  been  directed  might 
without  any  violence  to  reason  be  readily  gathered 
under  one  or  another  of  the  usual  subjects  of  the  police 
power — the  public  health,  public  morals,  or  public 
safety.  The  courts  have  not  always  been  careful  to 
distinguish  between  that  which  is  merely  offensive  and 
that  which  is  unwholesome  and  therefore  unheal thful. 
However,  even  offensiveness  that  results  only  from 
disturbing  noises  or  foul  vapors  may,  not  without  rea- 
son, because  of  their  effects  upon  human  nerves  or  their 
interference  with  sleep  or  their  pollution  of  the  air,  be 
regarded  as  deleterious  to  health.^^ 

General  ''industrial  zones 

By  ordinance  enacted  in  191 1  the  city  of  Los  Angeles 
attempted  to  deal  with  the  subject  of  noxious  indus- 
tries in  a  more  comprehensive  way  than  had  ever 
before  been  attempted  by  any  American  city.  A  num- 
ber of  so-called  "industrial  districts"  were  estabUshed, 
and  the  rest  of  the  city  was  described  as  a  ''residence 
district."  From  this  latter  district  provision  was  made 
for  the  complete  exclusion  of  ''any  stone  crusher,  rolling 
mill,  carpet  beating  establishment,  fireworks  factory, 
soap  factory,  or  any  other  works  or  factory  where 
power  other  than  animal  power  is  used  to  operate,  or 

21  Curtis  V.  City  of  Los  Angeles,  (Cal.)  156  Pac.  462  (1916). 

22  Freund,  Police  Power,  sec.  1076. 


BUILDING  HEIGHTS  AKI^ZQNI3^\:  ',  /-     loi 

in  the  operation  of  the  same,  or  any  hay  bam,  wood 
yard,  lumber  yard,  public  laundry  or  washhouse."  It 
was  further  provided,  however,  that  existing  industries 
operating  with  steam  boilers  might  continue  to  operate 
if  they  substituted  electric  motors  for  steam  boilers. 
Although  all  business  was  by  no  means  excluded  from 
the  residence  district  thus  created,  the  ordinance  in 
question  was  aimed  (i)  at  certain  specified  industries 
of  a  more  or  less  offensive  character,  (2)  at  all  existing 
industries  in  which  steam  was  manufactured  by  the 
burning  of  coal  upon  the  premises,  and  (3)  against  the 
establishment  in  the  future  of  any  manufacturing  plant 
using  either  steam  or  electric  current.  It  is  highly 
interesting  to  inquire  as  to  the  fate  which  this  ordinance 
met  at  the  hands  of  the  courts. 

As  far  back  as  1884  the  United  States  Supreme 
Court  had  held  that  "a  prohibition  to  carry  on  the 
washing  and  ironing  of  clothes  in  public  laundries  and 
washhouses,  within  certain  prescribed  limits  of  the  city" 
between  the  hours  of  ten  in  the  evening  and  six  in  the 
morning  was  ^'merely  a  designation  of  the  portion  of  the 
city  in  which  the  precautionary  measures  against  fire 
and  to  secure  proper  drainage  must  be  taken  for  the 
public  health  and  safety.  "^3  Regarding  such  a  regula- 
tion as  a  proper  exercise  of  the  police  power  for  these 
usual  purposes,  the  court  did  not  discuss. the  specific 
matter  of  regulation  by  the  district  method.  In  view 
of  this  decision  it  is  not  surprising  that  the  California 
supreme  court  sustained  the  Los  Angeles  ordinance 
in  its  application  to  laundries.^^  It  was  declared  in  this 


^  Barbier  v.  Connolly,  113  U.  S.  27  (1884). 
^Ex  parte  Quong  Wo,  161  Cal.  220  (1911). 


102  CITY  PROGRESS  AND  THE  LAW 

first  case  that  arose  under  the  ordinance  that  "the  design 
of  the  ordinance  here  involved  was  to  protect  such  por- 
tions of  the  city  of  Los  Angeles  as  are  devoted  princi- 
pally to  residence  purposes  from  the  dangers  and  dis- 
comfort attendant  upon  the  operation  of  certain  kinds 
of  business  which,  while  not  necessarily  nuisances  per 
se,  have  always  been  recognized  as  proper  subjects  of 
police  regulation."  In  the  view  of  the  court  the  laundry 
business  had  a  direct  relation  to  the  public  health. 

Shortly  after  this  decision  the  ordinance  was  sustained 
in  its  application  to  a  lumber  yard.^^  In  this  second 
case  the  court  simply  relied  upon  the  laundry  case  and 
did  not  discuss  the  specific  subject  of  the  police  power 
which  justified  the  prohibition  of  lumber  yards  within 
residence  districts.  Had  the  court  been  pressed  upon 
this  point  it  is  probable  that  the  protection  of  the 
public  safety  against  the  danger  of  fire  would  have  been 
invoked,  for  it  is  difficult  to  see  how  a  lumber  yard 
could  have  any  relation  to  the  public  health,  unless  it 
were  conducted  in  connection  with  a  mill  in  which  the 
elements  of  noise  and  smoke  might  have  been  in- 
volved. 

The  third  case  that  arose  involved  the  application 
of  the  ordinance  to  a  brick  yard.^^  The  court  held  that 
the  brick  business  bore  a  definite  relation  to  the  health 
and  comfort  of  the  public.  "The  burning  of  brick,"  it 
was  said,  *'is  a  trade  which  may,  when  conducted  in 
close  proximity  to  dwelling-houses,  be  so  offensive  to 
those  residing  in  the  vicinity  as  to  constitute  a  nui- 
sance."   And  the  court  added,  ''this  is  true  of  all  trades 


'  In  re  Montgomery,  163  Cal.  457  (1912). 
^Ex  parte  Hadacheck,  165  Cal.  416  (1913)- 


BUILDING  HEIGHTS  AND  ZONING  103 

which,  in  their  operation,  involve  the  discharge  of 
smoke  or  offensive  odors  in  the  surrounding  atmos- 
phere." This  case  was  carried  to  the  Supreme  Court 
of  the  United  States,  where  the  views  of  the  CaHfornia 
court  were  adopted  by  the  highest  court  of  the  land." 
The  court  said: 

There  was  a  denial  of  the  allegations  that  the  brick  yard  was  con- 
ducted or  could  be  conducted  sanitarily,  or  was  not  offensive  to 
health.  There  were  affidavits  supporting  the  denials.  In  these  it 
was  alleged  that  the  fumes,  gases,  smoke,  soot,  steam  and  dust  aris- 
ing from  the  petitioner's  brickmaking  plant  have  from  time  to  time 
caused  sickness  and  serious  discomfort  to  those  living  in  the  vicinity. 

Most  of  the  opinion  was  devoted  to  showing  that  the 
owner  of  the  brick  yard  had  not  proved  that  the  ordi- 
nance was  arbitrary  or  that,  being  discriminatory,  it 
deprived  him  of  the  equal  protection  of  the  laws.  On 
the  latter  point  the  court  declared  that  the  record  did 
not  show  that  others  were  permitted  to  manufacture 
brick  upon  similarly  situated  property,  nor  did  it  dis- 
close that  other  objectionable  businesses  were  per- 
mitted within  the  district.  As  to  whether  the  ordinance 
could  have  gone  so  far  as  to  prohibit  the  removal  of 
clay  for  the  purposes  of  manufacturing  bricks  else- 
where, the  court  reserved  judgment.^^  On  the  general 
subject  of  the  exercise  of  the  poHce  power  where,  as  in 
this  case,  it  resulted  in  an  obvious  destruction  of  a  very 

^  Hadacheck  v.  Sebastian,  239  U.  S.  394  (1915). 

^  In  Ex  parte  Kelso,  147  Cal.  609  (1905),  it  was  held  that  an  ordinance 
prohibiting  the  operation  of  a  rock  or  stone  quarry  within  a  certain  portion 
of  San  Francisco  was  void  on  the  ground  that  it  deprived  the  owners  of 
property  without  due  process  of  law.  This  case  was  distinguished  by  the 
CaHfornia  court  in  Ex  parte  Hadacheck,  supra,  on  the  ground  that  the 
owner  of  the  brick  yard  was  not  deprived  of  his  right  to  extract  clay.  This 
view  was  evidently  approved  by  the  United  States  Supreme  Court. 


104  CITY  PROGRESS  AND  THE  LAW 

considerable    property    right,   the  court    declared    as 
follows : 

It  is  to  be  remembered  that  we  are  dealing  with  one  of  the  most 
essential  powers  of  government, — one  that  is  the  least  limitable.  It 
may,  indeed,  seem  harsh  in  its  exercise,  usually  is  on  some  individual, 
but  the  imperative  necessity  for  its  existence  precludes  any  limita- 
tion upon  it  when  not  exerted  arbitrarily.  A  vested  interest  cannot 
be  asserted  against  it  because  of  conditions  once  obtaining.  .  . 
To  so  hold  would  preclude  development  and  fix  a  city  forever 
in  its  primitive  conditions.  There  must  be  progress,  and  if  in  its 
march  private  interests  are  in  the  way,  they  must  yield  to  the  good  of 
the  community.  The  logical  result  of  petitioner's  contention  would 
seem  to  be  that  a  city  could  not  be  formed  or  enlarged  against  the 
resistance  of  an  occupant  of  the  ground,  and  that  if  it  grows  at  all 
it  can  only  grow  as  the  environment  of  the  occupations  that  are 
usually  banished  to  the  purlieus. 

Prior  to  this  decision  the  supreme  court  of  Nebraska 
had  sustained  an  ordinance  that  entirely  prohibited  the 
erection  of  brick  kilns  within  the  limits  of  the  city  of 
Omaha. 2^  The  argument  was  directed  specifically  to 
showing  that  such  an  establishment  was  offensive  be- 
cause of  the  production  of  smoke  and  dust;  that  it 
was  "an  inviting  place  for  tramps  in  cold  weather,"  who 
might  be  ''turned  loose  on  the  residents  of  the  neighbor- 
hood in  the  outskirts  of  the  city,  where  police  protec- 
tion may  be  inadequate;"  and  that  ''the  value  of  resi- 
dence property  in  the  neighborhood  might  be  damaged  by 
relator's  enterprise,''  On  the  other  hand,  the  Colorado 
supreme  court  has  declared  that  an  ordinance  prohibit- 
ing the  maintenance  of  a  brick  yard  within  twelve  hun- 
dred feet  of  any  residence,  without  the  consent  of  the 
owner  of  such  residence,  or  of  any  park  or  school,  with- 

29  State  ex  rel.  Krittenbrink  v.  Withnell,  91  Neb.  loi  (1912). 


BUILDING  HEIGHTS  AND  ZONING  105 

out  the  consent  of  the  city,  was  unreasonable  and  a 
deprivation  of  property  without  due  process  of  law.^® 
But  since  this  is  manifestly  a  federal  question,  it  must 
be  regarded  now  as  settled  by  the  decision  of  the 
United  States  Supreme  Court  to  the  contrary. 

Whether  there  are  any  proscriptions  in  the  compre- 
hensive Los  Angeles  ordinance  which  may  not  be  gath- 
ered under  the  usual  subjects  of  the  police  power  re- 
mains yet  to  be  seen.  So  far  as  the  ordinance  applies 
to  coal-consuming  industries  the  protection  of  the 
public  health  may  doubtless  be  invoked  on  account  of 
the  element  of  smoke.  It  is  difficult  to  see,  however, 
how  a  person  may  be  prohibited  from  using  his  prop- 
erty for  an  industry  operated  by  electric  current  and 
otherwise  unobjectionable  on  any  of  the  customary 
grounds  advanced  in  support  of  an  exercise  of  the  police 
power.  Indeed,  so  far  as  the  common  subjects  of  the 
police  power  are  concerned,  opinions  will  doubtless 
differ  as  to  the  reasonableness  of  excluding  some  of  the 
specific  industries  mentioned  in  the  ordinance.  A 
lower  court  in  the  state  of  New  York  has  recently  sus- 
tained an  ordinance  of  Niagara  Falls  which  prohibited 
the  erection  or  maintenance  of  any  factory  within  a 
prescribed  residence  area  without  the  consent  of  adja- 
cent property  owners.^i  The  court  cited,  as  controlling, 
the  authority  of  the  United  States  Supreme  Court  in 
the  zoning  cases  involving  livery  stables  and  brick 
yards.^2  ^g  ^^  have  had  occasion  to  note,  however,  the 
decisions  in  these  cases  were  expressly  rested  upon  the 

3°  City  and  County  of  Denver  v.  Rogers,  46  Col.  479  (1909). 
*i  In  re  Russell,  158  N.  Y.  Supp.  162  (1916). 

22  Reinman  v.  Little  Rock,  supra,  99;  Hadacheck  v.  Sebastian,  supra, 
103. 


io6  CITY  PROGRESS  AND  THE  LAW 

protection  of  the  public  health.  In  the  New  York  case 
there  was  no  evidence  whatever  that  the  projected 
factory  would  have  any  relation  to  the  public  health; 
the  subject  was  not  even  mentioned.  Apparently  the 
ordinance  was  upheld  solely  upon  the  ground  that  *'the 
location  and  operation  of  a  factory  in  these  surround- 
ings would  greatly  impair  the  value  of  property  in  this 
section  and  seriously  interfere  with  its  proper  enjoyment 
in  the  purposes  to  which  it  has  been  heretofore  devoted ^ 

However  reasonable  it  may  be  to  regard  the  protec- 
tion of  property  values  as  a  proper  subject  of  the  police 
power,  it  is  sufficient  to  remark  that  the  other  cases 
involving  the  exclusion  of  industries  from  residence  dis- 
tricts have  not  been  rested  wholly  or  even  in  large  part 
upon  this  ground.  It  is  certainly  definitely  settled, 
however,  that  prohibitions  may  be  imposed  upon  the 
uses  of  private  property  within  designated  zones  or  dis- 
tricts of  a  city  whenever  such  prohibitions  are  in  the  in- 
terest of  the  health,  safety,  or  morals  of  the  community; 
and  it  is  probably  fair  to  say  that  the  concept  of  what 
constitutes  an  offensive  or  noxious  trade  or  industry 
has  been  and  is  being  very  considerably  widened. ^^ 

Zones  for  the  regulation  of  building  heights 

Apart  from  the  establishment  of  districts  for  the 
exclusion  of  business  that  may  be  classed  as  more  or 
less  offensive  in  character  when  carried  on  in  such  dis- 

^^  In  very  recent  years  certain  southern  cities  have  been  divided  into 
districts  for  the  purpose  of  segregating  the  residences  of  white  and  colored 
races.  State  v.  Gurry,  (Md.)  88  Atl,  546  (1913) ;  Acts  of  Assembly  of  Virginia, 
1912,  ch.  157.  Such  regulations  involve  considerations  wholly  different 
from  those  which  we  have  here  under  consideration;  they  may,  therefore, 
be  omitted  from  discussion. 


BUILDING  HEIGHTS  AND  ZONING  107 

tiicts,  attempts  have  been  made  in  very  recent  years  to 
impose  upon  private  property,  in  accordance  with  dis- 
trict lines,  restrictions  of  a  somewhat  different  char- 
acter. An  ordinance  such  as  that  enacted  in  the  city 
of  Los  Angeles  cannot,  of  course,  fail  to  have  a  very 
pronounced  effect  upon  the  sectional  development  of 
the  city.  At  the  same  time  its  effect  will  obviously  be 
limited.  In  connection  with  proposals  for  city  planning, 
it  has  been  urged  that  cities  should  be  divided  into  dis- 
tricts and  restrictions  imposed,  first,  with  reference  to 
the  heights  of  buildings,  second,  with  reference  to  the 
part  of  the  lot  or  lots  that  may  be  occupied  by  build- 
ings, and  third,  with  reference  to  the  uses  to  which 
property  may  be  put,  regardless  of  offensiveness. 

It  has  already  been  pointed  out  that  the  courts  have 
universally  sustained,  as  a  measure  in  the  interest  of 
public  health  and  safety,  limitations  upon  the  heights 
of  buildings.  In  most  of  the  early  cases  upon  this  sub- 
ject no  specific  point  was  made  in  respect  to  the  dis- 
tricting feature.  In  the  case,  however,  involving  a 
limitation  of  the  height  of  buildings  around  Copley 
Square  in  Boston  the  court  was  evidently  influenced  to 
a  very  large  extent  by  the  character  of  the  district  to 
which  this  limitation  was  made  to  apply.^^  So  also  in 
the  Maryland  case  already  mentioned,  the  court  de- 
clared that  the  limitation  of  the  height  of  buildings  sur- 
rounding a  public  square  in  Baltimore  was  to  "prevent 
the  multiplication  of  such  buildings  in  this  neighbor- 
hood and  the  increased  danger  from  fire  attendant 
thereon."^^ 

"Attorney  General  v.  Williams,  174  Mass.  476  (1899),  supra,  91,  94. 
85  Cochran  v.  Preston  io8  Md.  220  (1908),  supra,  91,  96. 


lo8  CITY  PROGRESS  AND  THE  LAW 

In  a  later  Massachusetts  case,^^  likewise  mentioned 
above,  the  court  was  compelled  to  consider  more  defi- 
nitely the  competence  of  the  legislature  to  regulate  the 
heights  of  buildings  by  districts,  the  statute  having  pro- 
vided for  the  division  of  the  city  for  this  purpose  into 
business  and  residence  districts.  In  support  of  the 
establishment  of  districts  for  such  a  purpose,  the  court 
said : 

The  value  of  the  land  and  the  demand  for  space  in  those  parts  of 
Boston  where  the  greater  part  of  the  buildings  are  used  for  purposes 
of  business  and  commerce,  is  such  as  to  call  for  buildings  of  greater 
height  than  are  needed  in  that  part  of  the  city  where  the  greater  part 
of  the  buildings  are  used  for  residence  purposes.  It  was,  therefore, 
reasonable  to  provide  in  the  statute  that  buildings  might  be  erected 
to  a  greater  height  in  the  former  parts  of  the  city  than  in  the  latter, 
even  if  some  of  the  streets  in  the  former  are  narrower  than  those  in 
the  latter. 

This  case,  as  we  have  seen,  was  carried  to  the  Supreme 
Court  of  the  United  States  ^^  where  in  addition  to  con- 
firming in  a  general  way  the  views  expressed  by  the 
Massachusetts  court,  the  court  elaborated  at  some 
length  upon  the  superior  fire  protection  that  is  usually 
afforded  in  business  districts,  as  well  as  upon  the  fact 
that  few  women  and  children  are  found  in  such  dis- 
tricts and  that  few  people  sleep  in  such  districts.  **An 
undiscovered  fire  at  night,"  said  the  court,  ''might  cause 
great  loss  of  life  in  a  very  high  apartment  house."  In 
other  words,  the  court  of  highest  resort  seemed  eager 
to  find  justification  for  the  regulation  of  the  heights 
of  buildings  by  districts  in  the  interest  of  protecting 
the  public  safety. 

36  Welch  V.  Swasey,  193  Mass.  364  (1907),  supra,  95. 
87  Welch  V.  Swasey,  214  U.  S.  91  (1908),  supra,  95. 


BUILDING  HEIGHTS  AND  ZONING  109 

Since,  as  we  have  had  occasion  to  observe,  the  regu- 
lation of  heights  of  buildings  has  been  sustained  by 
reference  to  the  need  for  protecting  the  public  health 
and  public  safety,  the  cases  which  sustain  the  power 
of  the  city  to  create  districts  for  such  a  purpose  as 
this  are  in  fact  entirely  in  line  with  those  which  sanction 
the  creation  of  districts  for  the  exclusion  of  offensive 
trades  and  industries.  Justification  for  the  exercise  of 
the  police  power  is  found  in  one  of  the  usual  subjects 
of  such  power;  the  establishment  of  districts  is  merely 
a  method  of  exercising  the  power.  We  have  had  occa- 
sion to  observe  also  that  the  prohibition  of  billboards 
in  residence  districts  has  been  sustained  upon  precisely 
the  same  general  line  of  reasoning.^^  In  other  words,  it 
may  be  set  down  as  a  fairly  established  proposition  that, 
in  spite  of  the  popular  hue  and  cry  about  the  zoning 
or  districting  of  cities,  the  establishment  of  zones  or 
districts  has  little  or  nothing  to  do  with  the  legal  prin- 
ciples involved.  The  primary  question  of  law  is 
whether  the  subject  sought  to  be  controlled  is  or  is  not 
a  proper  subject  of  control  under  the  police  power.  If 
it  is  such  a  subject,  the  zoning  of  the  city  is  merely  a 
matter  of  detail  or  method,  to  which  the  courts  have 
given  and  probably  will  give  little  attention  unless 
there  be  evidence  of  unreasonableness  or  arbitrariness. 

Zones  for  the  establishment  of  building  lines 

A  limitation  upon  the  portion  of  the  lot  that  may  be 

occupied  by  a  building  may  certainly  in  some  instances, 

as  in  the  case  of  tenement  houses,  be  justified  as  a 

measure  in  the  interest  of  the  public  health.^^     The 

38  Supra,  84-86. 

3^  Freund,  Police  Power,  sec.  128. 


no  CITY  PROGRESS  AND  THE  LAW 

protagonists  in  the  movement  for  city  planning,  how- 
ever, are  far  from  being  contented  with  so  moderate  a 
restriction  as  this.  Every  one  probably  recognizes 
that,  so  far  at  least  as  appearances  are  concerned,  limi- 
tations upon  the  percentage  of  lots  that  may  be  used 
for  building  purposes,  or  requirements  in  respect  to  the 
detachment  of  houses,  or  in  respect  to  the  distance  of 
houses  back  of  the  street  line  would  be,  broadly  speak- 
ing, "advantageous"  in  many  residence  neighborhoods. 
Many  a  city  residence  block  has  been  ''spoiled"  by  the 
erection  of  a  building  in  total  disregard  of  the  character 
and  location  of  adjacent  buildings  and  of  the  not  wholly 
unreasonable  wishes  of  neighboring  owners.  Here, 
however,  we  run  squarely  upon  the  contest  between  the 
rights  of  the  individual  and  the  rights  of  the  immediate 
community  or  of  the  public  at  large — a  contest,  in 
other  words,  between  the  constitutional  protection  of 
private  property  rights  and  the  police  power. 

In  all  of  the  cases  that  have  thus  far  been  adjudicated, 
decision  has  been  reached  against  the  power  of  the  city 
to  impose  regulations  of  this  kind.  Thus  in  Missouri 
it  was  held  that  an  ordinance  of  St.  Louis  which  fixed 
a  building  line  at  a  distance  of  forty  feet  from  the 
street  line  on  Forest  Park  Boulevard  was  void  be- 
cause it  deprived  the  owner  of  property  without 
due  process  of  law.^°  Without  considering  the  ordi- 
nance in  specific  reference  to  the  police  power,  the 
court  said: 

The  day  before  the  ordinance  went  into  operation,  defendant  had 
the  unquestionable  right  to  build  at  will  upon  his  lot;  the  day  after- 
wards he  was  as  effectually  prevented  from  building  on  the  40-foot 

*°  St.  Louis  V.  Hill,  116M0.  527  (1893). 


BUILDING  HEIGHTS  AND  ZONING  ill 

strip,  except  under  peril  of  punishment,  as  if  the  city  had  built  a  wall 
around  it,  and  this  too  without  any  form  of  notice,  any  species  of 
judicial  inquiry,  or  any  tender  of  compensation.  If  this  is  not  a 
"taking"  of  property  by  mere  arbitrary  edict,  it  is  difficult  to 
express  in  words  the  meaning  which  should  characterize  the  act  of 
the  city. 

So  also  in  New  York  a  statute  was  held  void  which 
required  all  buildings  to  be  set  back  thirty  feet  on  cer- 
tain parts  of  Eastern  Parkway  in  Brooklyn.^i  The  court 
did  not  even  mention  the  police  power,  but  held  that  the 
city  had  undertaken  to  control  an  easement  in  this 
thirty  feet  of  property  and  that  such  an  easement  ''is  a 
constitutional  right  of  property  which  cannot  be  taken 
from  its  owner  without  just  compensation."  In  a  recent 
West  Virginia  case  it  was  held  that  an  ordinance  estab- 
lishing a  building  line  on  a  particular  street  was  an  un- 
constitutional exercise  of  the  police  power. ^^  "Under 
the  present  status  of  the  law"  the  court  refused  to  ''go 
counter  to  the  great  weight  of  authority  and  take 
advance  ground  on  the  question  of  the  police  power  to 
regulate  and  control  the  use  of  private  property, 
based  on  mere  aesthetic  ground  and  having  no  reason- 
able reference  to  the  safety,  health,  morals  and  general 
welfare  of  the  public  at  large."  Whether  the  power  of 
eminent  domain  could  be  used  for  such  purpose,  the 
court  expressly  left  open  for  future  determination. 

A  recent  case  before  the  United  States  Supreme 
Court — that  of  Eubank  v.  Richmond  ^^ — may  be 
appropriately  considered  in  this  connection,  although 
it  did  not  apparently  involve  any  question  of  districting. 

"  People  ex.  rel.  Dilzer  v.  Calder,  89  N.  Y.  App.  Div.  503  (1903). 
^  Fruth  V.  Board  of  Affairs,  75  W.  Va.  456  (1915). 
"  226  U.  S.  137  (1912),  supra,  86. 


112  CITY  PROGRESS  AND  THE  LAW 

The  city  of  Richmond  enacted  an  ordinance  providing 
that  * 'whenever  the  owners  of  two-thirds  of  property 
abutting  on  any  street  shall,  in  writing,  request  the 
commissioner  on  streets  to  establish  a  building  line  on 
the  side  of  the  square  on  which  their  property  fronts, 
the  said  commissioner  shall  establish  such  line  so  that 
the  same  shall  not  be  less  than  five  feet  nor  more  than 
thirty  feet  from  the  street  line.'*  The  Supreme  Court 
held  this  ordinance  void  upon  the  following  line  of 
reasoning : 

It  [the  ordinance]  leaves  no  discretion  in  the  committee  on 
streets  as  to  whether  the  street  line  shall  or  shall  not  be  established 
in  a  given  case.  The  action  of  the  committee  is  determined  by  two- 
thirds  of  the  property  owners.  In  other  words,  part  of  the  property 
owners  fronting  on  the  block  determine  the  extent  of  use  that  other 
owners  shall  make  of  their  lots,  and  against  the  restriction  they  are 
impotent.  This  we  emphasize.  One  set  of  owners  determines  not 
only  the  extent  of  use,  but  the  kind  of  use  which  another  set  of 
owners  may  make  of  their  property.  In  what  way  is  the  pablic 
safety,  convenience,  or  welfare  served  by  conferring  such  power? 
The  statute  and  ordinance,  while  conferring  the  power  on  some 
property  holders  to  virtually  control  and  dispose  of  the  property 
rights  of  others,  creates  no  standard  by  which  the  power  thus  given 
is  to  be  exercised ;  in  other  words,  the  property  holders  who  desire 
and  have  the  authority  to  establish  the  line  may  do  so  solely  for  their 
own  interest,  or  even  capriciously.  Taste  (for  even  so  arbitrary  a 
thing  as  taste  may  control)  or  judgment  may  vary  in  localities,  in- 
deed, in  the  same  locality.  There  may  be  one  taste  or  judgment  cf 
comfort  or  convenience  on  one  side  of  a  street  and  a  different  one  on 
the  other.  There  may  be  diversity  in  other  blocks;  and,  viewing 
them  in  succession,  their  building  lines  may  be  continuous  or  stag- 
gering (to  adopt  a  word  of  the  mechanical  acts)  as  the  interests  of 
certain  of  the  property  owners  may  prompt  against  the  interests  of 
others.  The  only  discretion,  we  have  seen,  which  exists  in  the  street 
committee  or  in  the  committee  of  public  safety,  is  in  the  location  of 


BUILDING  HEIGHTS  AND  ZONING  113 

the  line,  between  five  and  thirty  feet.  It  is  hard  to  understand  how 
public  comfort  or  convenience,  much  less  public  health,  can  be  pro- 
moted by  a  line  which  may  be  so  variously  disposed. 

It  will  be  observed  that  the  court  laid  special  empha- 
sis upon  the  fact  that  the  ordinance  in  question  con- 
ferred power  on  some  property  owners  to  control  and 
dispose  of  the  rights  of  others/^  The  court  expressly 
refused  to  ''consider  the  power  of  a  city  to  establish  a 
building  line"  as  a  general  proposition.  At  the  same 
time,  the  court's  stricture  upon  **so  arbitrary  a  thing 
as  taste"  and  its  difficulty  in  understanding  "how  public 
comfort  or  convenience,  much  less  public  health,  can 
be  promoted  by  a  line  which  may  be  so  variously  dis- 
posed" ^^  cannot  escape  notice.  It  seems  evident  that 
at  that  writing  the  court  was,  to  say  the  least,  not 
receptive  toward  the  proposition  that  the  establishment 
of  building  lines  would  be  a  proper  exercise  of  the 
police  power.  And,  indeed,  it  is  difficult  to  see  how 
such  a  regulation  could  be  reasonably  fastened  upon 
any  of  the  usual  subjects  of  such  power. ^^ 

**  The  case  was  later  distinguished  from  those  involving  ordinances  en- 
acted under  the  police  power  which  impose  prohibitions  or  restrictions  upon 
the  uses  of  property,  but  which  vest  in  adjacent  property  owners  the  power 
to  remove  such  restrictions  by  consent.  See  Thomas  Cusack  Co.  v.  City 
of  Chicago,  supra,  86.  While  the  requirement  of  the  consent  of  property 
owners  to  remove  a  restriction  imposed  under  the  police  power  has  received 
the  sanction  of  the  United  States  Supreme  Court,  such  a  requirement  has 
been  held  void  by  some  of  the  state  courts.  See,  for  example.  City  of  St. 
Louis  V.  Russell,  116  Mo.  248  (1893);  Ex  parte  Sing  Lee,  96  Cal.  354  (1892) ; 
State  ex  rel.  Omaha  Gas  Co.  v.  Withnell,  78  Neb.  33  (1907). 

*^  Building  lines  absolutely  fixed  by  municipal  authorities  might  be  equally 
various  in  their  dispositions. 

^^See  also  City  of  Philadelphia  v.  Linnard,  97  Pa.  St.  242  (1881);  In  re 
Chestnut  Street,  118  Pa.  St.  593  (1888);  and  State  ex  rel.  Berger  v.  Hurley, 
73  Conn.  536  (1901);  all  of  which  involved  questions  of  building  lines. 


114  CITY  PROGRESS  AND  THE  LAW 

Zones  for  exclusively  residential  purposes 

From  the  viewpoint  of  city  planning  in  its  larger 
aspects,  the  cases  involving  attempts  to  create  in  cities 
distinct  residence  districts  from  which  all  business  is 
excluded  are  doubtless  of  greater  importance  than  any  of 
the  cases  heretofore  mentioned.  Such  attempts  have 
been  recently  made  in  a  number  of  cities,  but  every 
one  of  them  has  thus  far  met  defeat  at  the  hands  of  the 
courts.  In  St.  Louis  an  ordinance  enacted  under  express 
authority  granted  by  the  legislature  in  1891  provided 
that  houses  fronting  on  Washington  Boulevard  * 'shall 
be  used  as  residences  only,  and  no  business  avocations 
shall  be  allowed  to  be  followed  in  same."  The  supreme 
court  of  Missouri  held  that  this  ordinance  was  an  unwar- 
ranted invasion  of  private  property  rights.^^ 

In  Maryland  questions  of  this  character  have  been 
more  than  once  before  the  supreme  court.  The  earliest 
of  these  cases  involved  an  ordinance  of  the  city  of  Balti- 
more which  prohibited  the  issuance  of  a  building  permit 
except  for  a  building  which  "will  conform  to  the  general 
character  of  the  buildings  previously  erected  in  the 
same  locality,  and  will  not  in  any  way  tend  to  depreci- 
ate the  value  of  surrounding  improved  or  unimproved 
property."  The  court  held  that  a  citizen  had  a  ''common- 
law  right"  to  build  upon  and  improve  his  property  "as 
his  taste,  his  convenience,  or  his  interest  may  suggest 
or  as  his  means  may  justify,  without  taking  into  con- 
sideration whether   his   buildings  and   improvements 

*'  City  of  St.  Louis  v.  Dorr,  145  Mo.  466  (1898).  The  statute  was  also 
held  void  as  creating  a  class  of  cities  unwarranted  by  the  state  constitution; 
but  the  decision  on  this  point  was  apparently  overruled  at  a  later  date.  See 
McBain,  The  Law  and  the  Practice  of  Municipal  Home  Rule,  p.  124. 


BUILDING  HEIGHTS  AND  ZONING  1 15 

will  conform  in  'size,  general  character,  and  appearance' 
to  the  'general  character  of  buildings  previously  erected 
in  the  same  locality';  even  though  there  might  be 
those  in  whose  'judgment'  his  so  building  might,  in 
some  way,  'tend  to  depreciate  the  value  of  surrounding 
improved  or  unimproved  property'.  "  ^^  In  a  case 
decided  in  191 6  the  same  court  held  void  a  statute 
which  required  that  every  dwelling  house  in  a  desig- 
nated section  of  Baltimore  should  be  "constructed  as  a 
separate  and  unattached  building,"  such  buildings  to  be 
twenty  feet  apart  if  of  frame  construction  and  ten  feet 
apart  if  of  masonry  construction.^^  The  suggestion  that 
semi-detached  brick  houses  would  be  a  menace  to  the 
public  health  or  public  safety  was  dismissed  as  wholly 
untenable.  Even  though  the  erection  of  such  houses 
in  the  locality  proposed  "would  undoubtedly  depreciate 
to  some  extent  the  value  of  some  property,"  their  erec- 
tion could  not  be  prevented.  "The  act,"  said  the  court, 
"does  not  relate  to  the  police  power,  and  its  enforcement 
would  deprive  the  appellee  of  property  rights  guaran- 
teed by  the  Constitution,  which  cannot  be  invaded  for 
purely  sesthetic  purposes  under  the  guise  of  [the] 
police  power.  "^^^ 

In  Chicago  a  recently  enacted  ordinance  required 
the  consent  of  the  owners  of  a  majority  of  the  prop- 
erty on  both  sides  of  the  street  for  the  erection  of 
a  store  "in  any  block  in  which  all  of  the  build- 
ings are   used   exclusively    for   residence    purposes." 

^  Bostock  V.  Sams,  95  Md.  400  (1902). 

49  Byrne  v.  Maryland  Realty  Co.,  (Md.)  98  AU.  547  (1916). 

^°  See  also  Stubbs  v.  Scott,  (Md.)  95  Atl,  1060  (1915),  where,  although  the 
ordinance  in  question  was  held  to  be  ultra  vires,  the  court  declared  as  follows: 
"Opening  stores  in  some  neighborhoods  may  be  injurious  to  surrounding 


Il6  CITY  PROGRESS  AND  THE  LAW 

In  declaring  this  ordinance  void  the  Illinois  supreme 
court  said :  ^^ 

But  even  if  the  municipality  is  clothed  with  the  whole  police 
power  of  the  state,  it  would  still  not  have  power  to  deprive  a  citizen 
of  valuable  property  rights  under  the  guise  of  prohibiting  or  regulat- 
ing some  business  or  occupation  that  had  no  tendency  whatever  to 
injure  the  public  health  or  public  morals  or  interfere  with  the  general 
welfare.  .  .  There  is  nothing  inherently  dangerous  to  the 
health  or  safety  of  the  public  in  conducting  a  retail  store.  It  may  be 
that  in  certain  exclusively  residential  districts  the  owners  of  resi- 
dence property  would  prefer  not  to  have  any  retail  stores  in  such 
blocks;  but  if  such  be  the  case,  it  manifestly  arises  solely  from  aes- 
thetic considerations,  disconnected  entirely  from  any  relation  to  the 
public  health,  morals,  comfort  or  general  welfare.  Legislation, 
either  by  the  state  or  by  municipal  corporations,  cannot  be  sustained 
for  purely  aesthetic  purposes. 

A  recent  Denver  ordinance  sought  to  prohibit,  except 
with  the  consent  of  the  property  owners  in  the  block,  the 
erection  in  a  designated  residence  section  of  the  city 
not  only  of  buildings  for  business  purposes  but  also 
of  apartment  houses,  flat  houses,  large  rooming  houses 
and  hotels.^2  fhe  ordinance  further  required  that  every 
building  should  be  '*on  a  line  of  the  average  distance 
back  from  the  front  line  of  the  lots  as  the  buildings  on 
the  same  side  of  the  street  in  the  same  block. ' '  The  Colo- 
rado court  found  no  difficulty  in  deciding  that  "a  store 

properties  occupied  for  residences,  but  it  would  be  difficult,  if  not  impossible, 
to  prevent  an  owner  from  converting  his  residence  into  a  store  building, 
even  in  the  most  exclusive  part  of  the  city,  if  he  saw  proper  to  do  so." 

^1  People  ex  rel.  Friend  v.  City  of  Chicago,  261  111.  16  (1913). 

^2  It  was  declared  unlawful,  without  such  consent,  "to  build  or  erect  or 
make  addition  to  a  terrace  (for  more  than  two  families) ,  apartment  house, 
or  flat  (for  more  than  four  families),  store  building  or  factory  of  any  kind, 
rooming  house  of  more  than  thirty  rooms,  hotels  or  any  building  similar 
to  those  before  mentioned." 


BUILDING  HEIGHTS  AND  ZONING  117 

building  is  in  no  sense  a  menace  to  the  health,  comfort, 
safety,  or  general  welfare  of  the  public  .  .  .  whether 
it  stands  upon  the  rear  portion  of  the  lots  upon  which 
it  is  erected,  or  is  constructed  to  the  line  of  the  street." 
Restrictions  for  aesthetic  purposes,  said  the  court,  **can- 
not  be  upheld. "^^  So  in  New  York  it  was  held  that  an 
ordinance  of  Utica  which  prohibited  the  * 'maintenance 
or  conduct"  of  a  public  garage  within  the  city  limits 
without  a  permit  from  the  superintendent  of  buildings 
did  not  prohibit  the  erection  of  a  building  to  be  ''used 
and  occupied  for  buying,  selling,  dealing  in  and  other- 
wise disposing  of  vehicles,  automobiles,  motor  cycles 
and  other  personal  property."  "It  may  be  said  in  pass- 
ing," remarked  the  court,  that  "any  attempt  to  exercise 
any  such  power  would  be  unconstitutional,  for  the  busi- 
ness of  selling  such  vehicles  is  as  lawful  as  the  sale  of 
groceries  or  dry  goods."^*  In  the  same  state  also  a  lower 
court  has  held  ^^  that  a  city  ordinance  establishing  a 
residence  district,  under  the  authority  conferred  by 
the  Housing  Act  of  19 13, ^^  was  void  as  the  law  upon  this 
subject  now  stands."  In  this  case,  however,  the  court 
expressed  an  aspiration  "to  see  the  law  broadened,  not 
in  the  direction  of  Socialism,  not  to  take  away  one 
whit  from  the  proposition  that  all  men  are  endowed 
with  certain  inalienable  rights,  not  to  interpose  a 
single  obstacle  to  the  reasonable  and  healthy  growth 
of  a  city,  but  to  prevent  a  person  who  owns  real  estate 

"  Willison  V.  Cooke,  (Col.)  130  Pac.  828  (1913). 

^  People  ex  rel.  Realty  Co.  v.  Stroebel,    209  N.  Y.  434  (1913). 

^  People  V.  Roberts,  153  N.  Y.  Supp.  143  (1915). 

^Laws  of  New  York,  1913,  chs.  774,  798;  repealed  by  Laws  of  1915, 
ch.  32. 

"  Quoting  Dillon,  Municipal  Corporations,  5th  ed.,  sec.  695,  on  the  present 
status  of  the  law. 


\l8  CITY  PROGRESS  AND  THE  LAW 

in  a  residence  district  from  using  the  same  for  any  pur- 
pose unusual  in  such  districts,  unreasonably,  and  in  a 
spirit  that  fair  men  would  condemn.'* 

An  ordinance  of  the  city  of  Bay  St.  Louis,  in  Missis- 
sippi, sought  to  prevent  the  erection  of  anything  but 
open  summer  houses  upon  property  situated  between 
the  shore  of  the  bay  and  a  boulevard  lined  with  such 
houses.  A  property  owner  who  wanted  to  build  a 
market  shanty  within  the  prescribed  district  brought 
action  to  enjoin  the  city  from  enforcing  the  ordinance. 
The  supreme  court  of  the  state  was  evidently  convinced 
that  the  ordinance  was  drawn  in  the  interest  of  the 
"sentiment  of  a  particular  class"  having  ''superior  culti- 
vation." The  ordinance  was  held  *'to  deprive  the  owners 
of  property  of  its  lawful  use  for  a  supposed  public 
advantage."  ''Before  this  can  be  done,"  said  the  court, 
"there  must  be  just  compensation  first  made."^^ 

In  191 5  the  city  of  Minneapolis  enacted  an  ordinance 
establishing  a  residence  district  and  prohibiting  within 
this  district  the  "erection  and  maintenance  of  hotels, 
stores,  factories,  warehouses,  dry  cleaning  plants,  pub- 
lic garages  or  stables,  or  any  industrial  establishments 
or  any  business  whatsoever."  After  a  careful  review  of 
many  cases  in  point  the  supreme  court  of  Minnesota 
held  that  this  ordinance  could  not  be  sustained  "in  so 
far  as  it  prohibits  the  erection  of  ordinary  store  build- 
ings;" but  this  was  expressly  declared  not  to  mean  "that 
it  is  not  valid  in  so  far  as  it  applies  to  structures  which 
are  within  the  regulatory  domain  of  the  police  power."^^ 

^  Quintini  v.  Mayor  etc.  of  Bay  St.  Louis,  64  Miss.  483  (1886). 
5^  State  ex  rel.  Lachtman  w.  Houghton,  (Minn.)  158  N.W.  1017  (1916). 
Two  justices  dissented. 


BUILDING  HEIGHTS  AND  ZONING  119 

The  protection  of  property  values  as  a  subject  of 
the  police  power 

The  above-mentioned  cases  present  a  somewhat  im- 
posing array  of  decisions  by  the  highest  courts  of  the 
states  against  the  competence  of  the  state,  or  its  agent, 
the  city,  to  create  zones  or  districts  for  exclusively 
residential  purposes.  This  question,  although  it  is 
obviously  a  federal  question,  has  not  as  yet  been  pre- 
sented to  the  highest  court  of  the  land.  It  will  be 
noted  that  a  number  of  the  cases  in  point,  as  well  as 
the  cases  dealing  with  the  power  of  the  city  to  establish 
building  lines,  apparently  proceed  upon  the  assumption 
that  the  property  rights  involved  can  be  taken  from 
the  owners  provided  just  compensation  is  made.®^  This" 
only  gives  emphasis  to  the  fact  already  mentioned  ^^ 
that  in  construing  the  purposes  for  which  the  power  of 
eminent  domain  may  be  used,  the  courts  are  naturally 
more  generous  than  they  are  in  defining  the  scope  of  the 
police  power.  When  the  precise  connotation  of  words 
is  considered  there  is  in  point  of  fact  small  margin  for 
this  diifferentiation.  The  power  of  eminent  domain 
may  be  used  only  for  a  ''public  purpose."  The  police 
power,  say  the  courts  unguardedly,  may  be  employed 
in  the  interest  of  the  ''public  welfare."  Unless  there  be 
some  recognizable  distinction  between  these  two 
phrases,^^  it  would  seem  that  these  two  powers  are,  so 
far  as  purposes  are  concerned,  of  exactly  the  same 
comport. 

^A  recent  Minnesota  law  provides  for  the  establishment  of  residence 
districts  under  the  power  of  eminent  domain.  Laws  of  Minnesota,  1915, 
ch.  128. 

«  Supra,  66,  67. 

M  Infra,  125  ff. 


I20  CITY  PROGRESS  AND  THE  LAW 

However  that  may  be,  it  is  certain  that  if  the  power 
of  a  city  to  regulate  upon  this  broader  scale  the  uses  to 
which  private  property  may  be  put  is  to  be  sustained 
as  a  proper  exercise  of  the  police  power,  some  new  line 
of  reasoning  must  be  found  and  pursued.  The  custo- 
mary subjects  of  the  police  power  are  of  no  avail  unless 
it  be  assumed  that  the  United  States  Supreme  Court, 
the  court  of  last  resort  upon  such  a  question,  can  be 
induced  to  sustain  restrictions  of  this  kind  without 
close  scrutiny,  as  in  the  case  of  billboard  restrictions.^^ 
The  difficulty  about  such  an  assumption  is  that  prop- 
erty rights  of  a  far  more  comprehensive  character  are 
involved,  and  that  scarcely  a  shadow  of  purpose  in  the 
direction  of  protecting  the  public  health  or  the  public 
safety  can  be  demonstrated.  From  the  viewpoint  of 
the  law  it  is  certainly  insufficient  for  the  advocates  of 
city  planning  to  declare  somewhat  vaguely  that  ''the 
most  important  part  of  city  planning,  so  far  as  the 
future  health  of  the  city  is  concerned,  is  the  districting 
of  the  city  into  zones ;"^^  or  to  assert  that  ''districting 
is  the  only  practical  method  of  preventing  the  spread 
of  congestion  ;"«5  or  to  aver  that  "the  setting  of  a 
definite  limit  to  the  use  of  land  in  any  particular  part 
of  the  city,  makes  it  possible  to  calculate  pretty  closely 
just  how  wide  the  streets  need  to  be."^^  The  courts,  as 
we  have  seen,  are  prepared  to  sustain  the  principle  of 
zoning  in  its  application  to  offensive  businesses,  or  the 
heights  of  buildings,  or  even  billboards,  for  the  reason 
that  the  regulation  of  such  things  can,  under  certain 

63  Supra,  85-87. 

**  Marsh,  Introduction  to  City  Planning,  p.  28. 

^  Nolen,  Better  City  Planning  for  Bridgeport,  1916,  p.  138. 

6«  Robinson,  Width  and  Arrangement  of  Streets,  p.  80. 


BUILDING  HEIGHTS  AND  ZONING  I2I 

circumstances  at  least,  be  justified  as  measures  in  the 
interest  of  the  public  health  or  safety.  But  the  courts 
must  be  shown  that  the  erection  of  a  building  on  the 
street  line  or  the  maintenance  of  a  corner  grocery  in  a 
residence  section  of  the  city  is  in  the  same  category. 
As  a  matter  of  fact  a  contention  of  this  kind  will  be 
difficult  to  prove. 

Is  there,  then,  any  other  invitingly  propitious  line  of 
reasoning  that  may  be  invoked?  In  consideration  of 
the  fact  that  the  courts  have  rarely  if  ever  sustained 
under  the  police  power  legislation  that  could  not  be 
gathered  under  one  or  more  of  its  commonly  enumer- 
ated subjects,  it  seems  almost  futile  to  seek  support  in 
those  broad  descriptions  of  the  police  power  which, 
isolated  from  the  context  of  specific  issues,  merely  pro- 
voke the  imagination  to  flights.  ** Comfort,"  "conven- 
ience," "welfare,"  and  "prosperity'*  are  terms  which  lend 
themselves  less  to  definition  than  to  speculation.^^  If 
such  undefinable  terms  be  passed  over  for  practical 
reasons,  it  seems  unescapable  that  regulations  in  respect 
to  building  lines  or  residence  districts  are  always  im- 
posed for  one  of  two  purposes :  to  secure  aesthetic  sym- 
metry, or  to  stabilize  realty  values.  Both  of  these  pur- 
poses may  be  in  mind;  but  it  is  perhaps  beyond  dis- 
pute that  the  latter  is  primary.  Is  this  a  legitimate,  a 
proper,  purpose  for  the  exercise  of  the  police  power? 

It  must  be  borne  in  mind  that  the  police  power,  in 
spite  of  the  terms  in  which  it  is  commonly  described, 
has  its  economic  as  well  as  its  social  uses.®^  To  sustain 

•f  On  this  point  see  State  ex  rel.  Lachtman  v.  Houghton,  (Minn.)  158  N.  W. 
1017  (1916). 

^  Supra,  59,  61. 


122  CITY  PROGRESS  AND  THE  LAW 

the  stabilization  of  realty  values  under  this  power  would 
doubtless  be  to  create  a  new  economic  subject  of  con- 
trol. It  would  seem,  nevertheless,  that  this  is  precisely 
what  the  courts  should  be  asked  to  do.  Arguments  of 
much  force  may  certainly  be  put  forward  in  support  of 
the  wisdom  of  regulations  in  the  interest  of  protecting 
sectional  property  values.  Protection  of  this  kind, 
when  it  is  founded  upon  some  fairly  comprehensive  plan 
involving  a  considerable  number  of  property  owners, 
may  surely  be  regarded  as  protection  for  the  public 
rather  than  for  the  property  owner  as  an  individual. 
And  if  it  be  urged  that  the  recognition  of  such  a  subject 
of  control  under  the  police  power  would  open  up  possi- 
bilities for  mistakes  of  judgment  and  grave  abuses,  it 
may  be  answered  that  such  possibilities  inhere  in  every 
exercise  of  the  police  power,  and  that  the  constitution- 
ality of  a  new  policy  of  regulation  should  not  be  tested 
in  the  light  of  extreme  possibilities  that  assume  either 
ignorance  and  stupidity  or  deliberate  bad  faith. 

Even  the  social  subjects  of  the  police  power  have 
occasionally  an  important  economic  aspect.  The  pub- 
lic safety,  for  example,  has  perhaps  been  most  fre- 
quently invoked  in  the  matter  of  protection  against 
fire.  Have  our  law-makers  considered  this  danger 
wholly  with  reference  to  life  and  limb?  Manifestly  not. 
On  the  whole  it  has  probably  been  considered,  though 
not  so  defined,  as  an  economic  rather  than  a  personal 
danger.  It  is  true  that  regulations  for  fire  protection 
have  not  been  in  the  interest  of  stabilizing  realty  values, 
but  many  of  them  have  certainly  been  in  large  measure 
for  the  protection  of  such  values.  There  is  many  a 
property  owner  who  would  have  regretted  his  fire  loss 


BUILDING  HEIGHTS  AND  ZONING  123 

less  than  the  loss  which  he  suffered  by  reason  of  an 
unforeseen — not  to  say  capricious — change  in  the  neigh- 
borhood character  of  his  realty  holding. 

The  United  States  Supreme  C^urt  has  declared  that 
the  police  power  may  be  used  "for  the  benefit  of  prop- 
erty owners  generally  ;'*^^  the  Massachusetts  court 
has  recognized  that  differences  in  the  'Value  of  land 
and  the  demand  for  space"  may  be  considered  in  regu- 
lating building  heights  ;''^  the  Nebraska  court  has  argued 
that  damage  to  the  'Value  of  residence  property"  may 
be  at  least  one  reason  for  excluding  a  more  or  less 
offensive  industry  ;^i  a  lower  New  York  court  has  put 
forward  the  impairment  of  property  values  as  the  sole 
reason  for  excluding  factories  from  residence  districts 
without  regard  to  offensiveness.^^  Why,  indeed,  may 
not  the  protection  of  property  values,  not  of  the  indi- 
vidual but  of  an  entire  group,  be  included  as  an  appro- 
priate subject  of  the  police  power.  Of  all  the  subjects 
of  the  police  power  it  would  seem  that  this  would  be  the 
least  open  to  objection.  It  is  chiefly  the  property  rights 
of  individuals,  protected  by  constitutional  provisions, 
that  have  stood  in  the  way  of  an  expansion  of  the  police 
power.  But  here  is  a  proposal  for  an  exercise  of  the 
police  power  for  the  creation  of  new  legal  property 
rights  in  the  interest  of  a  group.  Are  the  property 
rights  of  many  to  be  sacrificed  to  the  property  rights 
of  a  single  individual  because,  forsooth,  the  former  are 
of  statutory  origin  under  the  police  power,  while  the 
latter  find  historical  sanction  in  the  constitution? 

•«  Supra,  95. 
"  Supra,  108. 
"  Supra,  104. 
n  Supra,  106. 


CHAPTER  V 

CITY  PLANNING— EXCESS   CONDEMNATION 

Excess  condemnation  is  a  peculiarly  American  term 
employed  to  describe  the  policy  of  condemning  private 
property  for  some  purpose  that  is  collateral  or  incident 
to  a  primary  public  use  for  which  adjacent  property  is 
being  or  has  been  acquired.  When  a  public  improve- 
ment is  undertaken,  such  as  the  opening  or  widening  of 
a  street  or  boulevard,  or  the  establishment  of  a  park, 
or  some  other  similar  enterprise,  it  may  seem  desirable 
that  property  in  "excess"  of  what  is  indispensable  for 
such  improvement  be  taken  for  one  or  more  of  several 
collateral  purposes.  From  the  viewpoint  of  the  law  the 
use  of  the  word  * 'excess"  in  this  connection  is  unfortu- 
nate; it  fairly  implies  that  the  property  is  not  needed 
for  any  public  purpose.  The  fact  is,  however,  that  the 
constitutionality  of  the  so-called  policy  of  excess  con- 
demnation depends  wholly  upon  the  question  whether 
the  purpose  for  which  it  is  employed  may  or  may  not 
be  regarded  as  "public"  in  character.  This  arises  from 
two  fundamental  rules  of  our  law,  one  of  which  relates 
to  the  power  of  eminent  domain  and  the  other  to  the 
power  of  taxation. 

The  rule  of  ^^ public  use^^ 

Our  state  constitutions  commonly  provide  that  pri- 
vate property  shall  not  be  taken  for  public  use  except 
upon  the  payment  of  just  compensation ;  and  the  United 


CITY  PLANNING— EXCESS  CONDEMNATION     125 

States  Supreme  Court  has  held  that  this  requirement, 
although  not  expressed  as  a  federal  prohibition  against 
the  states,^  is  nevertheless  embraced  within  the  guar- 
anty of  due  process  of  law.^  Since  this  prohibition 
refers  only  to  property  taken  for  a  public  use,  it  has 
been  construed  by  the  courts  to  imply  that  private 
property  may  not  be  taken  for  private  use  whether  com- 
pensation is  paid  or  not.^  There  is  also  a  general  rule 
of  our  constitutional  law  that  taxes  may  be  imposed 
only  for  a  public  purpose.^  This  rule  must  likewise  be 
considered ;  for  the  property  that  is  acquired  under  the 
policy  of  excess  condemnation  must  normally  be  paid 
for  by  the  levying  of  taxes.  The  constitutionality  of 
excess  condemnation,  therefore,  depends  upon  the  defi- 
nition of  the  terms  ''public  use"  and  "public  purpose." 
Doubtless  these  terms  may  be  regarded  as  identical  in 
meaning.    The  question  is :  what  is  their  meaning? 

It  is  impossible  to  give  here  any  adequate  outline  of 
the  wide  varieties  of  opinion  that  have  been  expressed 
by  the  courts  on  the  subject  of  what  constitutes  a  pub- 
lic use  or  purpose. 5  An  eminent  commentator  has  at- 
tempted to  summarize  the  law  by  declaring  that  *'the 

1  It  is  expressed  in  the  fifth  amendment  as  a  prohibition  upon  Congress. 

2  Chicago,  Burlington  &  Quincy  R.  Co.  v.  Chicago,  i66  U.  S.  226  (1896). 
"It  is  fundamental  in  American  jurisprudence  that  private  property  cannot 
be  taken  by  the  government,  national  or  state,  except  for  purposes  which  are 
of  a  public  character,  although  such  taking  be  accompanied  by  compensation 
to  the  owner.  That  principle  .  .  .  grows  out  of  the  essential  nature  of  all 
free  governments."  Harlan,  J.,  in  Madisonville  Traction  Co.  v.  St.  Bernard 
Mining  Co.,  196  U.  S.  239  (1904). 

8  McBain,  Taxation  for  a  Private  Purpose,  in  Political  Science  Quarterly, 
XXIX,  p.  187.  A  few  state  constitutions  expressly  prohibit  this  taking  of 
property  for  private  uses. 

<  This  rule  has  not  as  yet  been  referred  to  the  federal  guarantee  of  due 
process  of  law.    Ihid. 

8  See  Lewis,  Eminent  Domain,  3d  ed.,  ch.  VII. 


126  CITY  PROGRESS  AND  THE  LAW 

different  views  which  have  been  taken  of  the  words 
'public  use'  resolve  themselves  into  two  classes:  one 
holding  that  there  must  be  a  use  or  a  right  of  use  on 
the  part  of  the  public  or  some  limited  portion  of  it,  the 
other  holding  that  they  are  equivalent  to  public  benefit, 
utility  or  advantage."  ^  The  weight  of  authority,  he 
thinks,  as  well  as  the  weight  of  reason,  supports  the 
first  of  the  views.  In  other  words,  ''public  use  means 
use  hy  the  public .'"^ 

In  spite  of  the  frequent  enunciation  of  this  distinction 
by  the  courts,  it  seems  highly  questionable  whether  in 
fact  it  gives  expression  to  a  very  concrete  conception. 
What  is  the  test  of  a  ''use  by  the  public"?  It  is  not 
ownership  by  the  government ;  for  the  power  of  eminent 
domain  may  be  granted  to  private  persons.  It  is  not 
that  the  property  acquired  must  be  indispensable  to  the 
object  sought;  for  property  is  often  condemned  under 
no  such  exacting  circumstances.  It  is  not  that  the  pub- 
lic shall  have  a  right  of  access  to  the  property  acquired ; 
for  the  public  has  no  peculiar  right  of  access  to  lands 
taken  for  such  enterprises  as  a  waterworks,  or  a  gas  or 
electric  plant,  or  a  railway  shop  or  yard,  or  a  large 
number  of  other  properties  that  may  be  secured  under 
eminent  domain.  It  is  not  that  the  public  enjoys  a 
legal  right  to  demand  some  kind  of  service  from  the 
authority  or  person  who  acquires  by  eminent  domain 
property  to  be  used  in  connection  with  the  furnishing 
of  such  service;  for  the  public  enjoys  no  legal  right  to 
demand  fire  protection,  although  property  may  cer- 
tainly be  condemned  for  fire  houses.     It  is  not  the 

« Lewis,  Eminent  Domain,  sec.  257. 
» Ibid.,  sec.  258. 


CITY  PLANNING— EXCESS  CONDEMNATION     127 

number  of  persons  affected;  for  the  United  States 
Supreme  Court  is  authority  for  the  rule  that  in  certain 
circumstances  eminent  domain  may  be  exercised  for  the 
benefit  of  a  single  person.^  Indeed,  it  would  probably 
be  difficult  to  discover  any  test  or  group  of  alternative 
tests  that  could  be  applied  to  determine  precisely  what 
is  meant  by  a  **use  by  the  public." 

If  it  be  conceded,  then,  that  the  phrase  "use  by  the 
public"  is  somewhat  undefinable,  and  that  in  con- 
sequence the  distinction  between  such  a  use  and  a  ''pub- 
lic benefit,  utility  or  advantage"  is,  after  all,  not  easily 
demarked,  it  becomes  from  one  point  of  view  more 
difficult  and  from  another,  less  difficult  to  determine 
whether  property  acquired  under  the  so-called  policy 
of  excess  condemnation  is  or  is  not  taken  for  a  public 
use.  It  is  more  difficult  because  there  are  few  if  any 
recognized  tests  that  may  be  applied;  the  usual  §ub- 
jects  of  the  power  of  eminent  domain  are  not  even  as 
definitely  formulated  as  those  of  the  police  power. ^  It 
is,  on  the  other  hand,  less  difficult  simply  because  of 
this  indefiniteness.  It  is  manifestly  easier  to  establish 
a  new  subject  for  the  exercise  of  an  elastic  power  of 
government  when  the  instances  of  its  previous  exer- 
cise have  not  been  rigidly  classified  with  reference  to 
subject  purposes. 

7^  a  constitutional  provision  necessary? 

In  Massachusetts,  Ohio,  Wisconsin,  New  York,  and 
Rhode  Island  excess  condemnation  has  been  authorized 
by  constitutional  amendments.     Similar  amendments 

»  Clark  V.  Nash,  198  U.  S.  361  (1905). 
•  Supra,  59  flf. 


128  CITY  PROGRESS  AND  THE  LAW 

have  been  defeated  at  the  polls  in  California  and  New 
Jersey,  and  a  proposed  amendment  in  Pennsylvania 
failed  to  receive  the  approval  of  a  second  legislature. 
In  certain  other  states  excess  condemnation  laws  have 
been  enacted  without  express  constitutional  sanction. 
The  notion  seems  to  prevail,  however,  that  all  doubt  in 
respect  to  the  validity  of  such  laws  can  be  resolved  by 
incorporating  a  provision  upon  the  subject  into  the 
constitution  of  the  state.  Indeed,  the  two  Massachu- 
setts amendments  were  adopted  and  the  Pennsylvania 
amendment  was  proposed  subsequent  to  opinions  by 
the  highest  courts  of  these  states  adverse  to  excess 
condemnation  statutes. 

As  we  had  occasion  to  note  at  the  outset,  the  United 
States  Supreme  Court  has  definitely  gathered  the  pub- 
lic purpose  rule,  at  least  in  its  application  to  the  power 
of  eminent  domain,  under  the  federal  guaranty  of  due 
process  of  law.  Whether  excess  condemnation  may  or 
may  not  be  practised  under  our  system  of  jurisprudence 
is,  in  consequence,  a  federal  question,  although  it  has 
not  as  yet  been  presented  to  the  highest  court  of  the 
land.  Can  a  state  of  the  Union  draw  the  teeth  of  the 
federal  guaranty  of  due  process  of  law  by  an  amendment 
to  its  own  constitution  to  which  its  own  courts  will 
defer?  Obviously  not,  it  would  seem.  A  provision  of 
a  state  constitution  may  run  counter  to  the  fundamental 
law  of  the  nation  as  well  as  a  statutory  provision.  The 
most  that  can  be  said  in  favor  of  a  state  constitutional 
amendment  authorizing  excess  condemnation  is  that 
the  state  courts  would  almost  certainly  defer  to  it  and 
that  the  United  States  Supreme  Court  would  in  all 
probability  accord  it  greater  respect  than  might  be 


CITY  PLANNING— EXCESS  CONDEMNATION      129 

given  to  a  statute  passed  without  such  constitutional 
sanction. 

Excess  condemnation  of  remnants  of  land 

Not  infrequently  it  happens  that  the  taking  of  prop- 
erty for  a  public  improvement  operates  to  leave  in  the 
hands  of  private  owners  remnants  of  estates  that  are 
ill-suited  either  for  independent  development  or  for 
advantageous  conveyance.  In  such  circumstances  it 
may  be  urged  that  the  city  itself  should  take  over  such 
remnants.  But  for  what  purpose?  If  this  be  advocated 
solely  on  the  ground  of  justice  to  the  owners  it  may  be 
answered  not  only  that  the  owner  of  property  con- 
demned is  commonly  compensated  in  an  amount  in 
excess  of  the  actual  market  value  of  his  property  but 
also  that  he  is  ordinarily  paid  for  property  that  is 
damaged  as  well  as  for  property  that  is  actually  taken. 
If  the  fragment  left  on  his  hands  is  of  little  or  no 
economic  value,  it  is  needless  to  say  that  this  fact  is 
usually  accounted  for  in  the  award  that  is  made 
to  him.  But  if  the  city  is  compelled*  to  pay  for 
the  full  value  of  such  a  remnant  there  is  certainly 
no  reason  why  the  city  should  not  be  empowered  to 
take  title  to  it,  whether  for  a  definite  or  an  indefinite 
purpose. 

The  city  may  in  fact  have  a  definite  purpose  in  view. 
It  may,  for  example,  intend  to  consolidate  a  number  of 
such  remnants,  and  to  replot  and  offer  them  for  sale. 
The  public  character  of  the  purpose  involved  in  a  re- 
plotting  of  lands  adjacent  to  a  public  improvement  will 
be  discussed  in  more  appropriate  connection  below;  it 
is  sufficient  to  remark  at  this  point  that,  considered 


130  CITY  PROGRESS  AND  THE  LAW 

without  reference  to  other  adjoining  property,  ill- 
assorted  remnants  of  land  abutting  upon  a  public 
improvement  seldom  lend  themselves  to  advantageous 
consolidation  and  replotting. 

The  city  may,  again,  desire  to  acquire  remnants  of 
land  in  order  to  prevent  their  non-use.  This  could  be 
accomplished  either  by  some  plan  of  parking  such  rem- 
nants, or  otherwise  incorporating  them  into  the  scheme 
of  the  improvement,  or  by  disposing  of  them  to  the 
owners  of  adjoining  property.  If  the  first  of  these 
policies  were  pursued,  there  could  be  little  question 
that  the  land  would  be  acquired  for  a  public  purpose; 
but  the  policy  of  acquiring  remnants  for  subsequent 
conveyance  to  adjoining  owners  raises  a  wholly  different 
question.  In  the  matter  of  such  conveyance  the  city 
would  enjoy  no  advantage  over  against  the  previous 
owner  of  a  remnant  except  that  the  city  might  be  willing 
to  sell  at  a  lower  figure  in  order  to  induce  purchase  by 
the  owner  of  the  adjoining  property.  It  is  clear,  how- 
ever, that  unless  the  city  imposed  upon  the  purchaser 
requirements  ih  respect  to  use,  the  property  might  still 
remain  unused,  and  nothing  would  be  accomplished 
except  the  creation  at  the  public  expense  of  a  potential 
usefulness  by  reason  of  a  change  of  ownership.  Since 
the  acquisition  of  "excess"  property  in  order  to  resell  it, 
subject  to  restrictions  upon  its  use,  is  one  of  the  larger 
purposes  for  which  the  policy  of  excess  condemnation 
has  been  urged,  it  seems  unnecessary  to  discuss  as  a 
separate  proposition  the  character  of  the  purpose  that 
is  involved  where  remnants  are  acquired  to  prevent 
their  not  being  used.  Such  a  purpose,  whether  public 
or  private,  can  be  fully  accomplished  only  by  the  im- 


CITY  PLANNING— EXCESS  CONDEMNATION     131 

position  of  requirements  or  restrictions  in  the  deeds  of 
resale;  and  it  is  difficult  to  see  how  such  a  policy  with 
respect  to  remnants  can  be  distinguished  in  kind  from 
a  like  policy  applied  to  parcels  of  land  which  are  not 
remnants. 

Another  possible  object  of  the  city  may  be  to  prevent 
the  *  'misuse' '  of  remnants.  An  ill-shaped  bit  of  land  may 
be  suitable  only  for  the  erection  of  a  billboard  or  of  a 
building  wholly  out  of  keeping  with  the  character  of  the 
neighborhood  and  the  wider  purposes  of  the  public 
improvement.  Here  again,  however,  whether  such  a 
purpose  be  regarded  as  public  or  private,  it  is  manifest 
that  the  city  can  prevent  such  "misuse"  only  by  in- 
corporating the  remnants  into  the  improvement  itself 
or  by  reselling  them  subject  to  restrictions  in  respect 
to  use. 

Indeed,  it  seems  patent  that,  unless  undertaken  as  a 
matter  of  justice  to  the  owner  or  for  incorporation  into 
the  improvement  itself,  the  acquisition  of  ''excess"  rem- 
nants can  be  justified  only  upon  grounds  that  would 
also  justify  the  acquisition  of  lots  which  are  not 
remnants. 

For  the  most  part  American  condemnation  laws  have 
sought  to  mete  justice  to  the  owner  of  land  taken  by 
paying  him  for  any  damage  that  is  done  to  a  remnant 
left  upon  his  hands.  Where  the  award  for  such  damage 
is  approximately  equal  to  the  full  valuation,  as  it  often 
is,  a  transfer  of  title  to  the  city  becomes,  it  would  seem, 
a  matter  of  justice  to  the  city  rather  than  to  the  owner. 
Although  not  many  cities  have  been  legally  competent 
to  take  title  to  such  a  remnant,  in  a  few  instances 
statutes  have  attempted  to  deal  with  this  matter. 


132  CITY  PROGRESS  AND  THE  LAW 

Thus  a  New  York  law  of  183310  authorized  the  village 
of  Brooklyn  to  take  over  remnants  ''in  cases  where 
injury  or  injustice  would  otherwise  be  done,  and  with 
the  consent  in  writing  of  the  owner  or  owner sJ*^  Similar 
in  character  were  a  Louisiana  statute  of  1832/^  a  Massa- 
chusetts statute  of  1866,12  and  a  Maryland  statute  of 
1904.13  These  laws,  which  merely  authorized  the  taking 
of  title,  leaving  an  option  both  to  the  municipal  cor- 
poration and  the  owner,  appear  not  to  have  been  con- 
tested before  the  courts.  ^^  While  they  pointed  the  way 
to  justice,  they  can  scarcely  be  said  to  have  insured  it 
either  to  the  city  or  the  owner. 

Of  quite  a  different  character  were  a  South  Carolina 
law  of  1810,1^  a  Maryland  law  of  1838, ^^  and  Massachu- 
setts laws  of  1865  and  1904,1^  which  made  it  obligatory 
upon  the  city  to  purchase  a  remnant  in  case  the  owner 
elected  to  part  with  his  entire  lot.  Here  the  obvious 
intention  was  justice  to  the  owner;  and  while  these  laws 
apparently  gave  slight  consideration  to  the  interests  of 
the  city,  it  may  well  be  that  they  operated  more  lightly 
upon  the  public  than  those  more  numerous  statutes 
which  compel  payment  for  injury  to  remnants  but 
neither  authorize  nor  require  the  assumption  of  title 

10  Laws  of  New  York,  1833,  ch.  319. 

"  Act  of  April  3,  1832. 

"Acts  of  Massachusetts,  1866,  ch.  174. 

13  Acts  of  Maryland,  1904,  ch.  87. 

"  The  Louisiana  act  was  before  the  court  in  Pierre  Boulat  v.  Municipality 
Number  One,  S  La.  Ann.  363  (1850) ;  but  it  is  not  clear  what  the  owner,  who 
had  abandoned  his  lot  to  the  city,  was  suing  for. 

16  Mentioned  in  Dunn  v.  City  of  Charleston,  Harper's  Law  (S.  C.)  189 
(1824). 

"Laws  of  Md.,  1838,  ch.  226. 

"Acts  and  Resolves  of  Massachusetts,  1865,  ch.  159;  ibid.,  1904,. 
ch.  443. 


CITY  PLANNING— EXCESS  CONDEMNATION     133 

to  them  by  the  city.  Needless  to  say,  no  such  law  has 
ever  been  declared  void.^^ 

Quite  otherwise  in  intent  was  a  New  York  law  of 
1812^^  which  authorized  the  city  of  New  York  to  take 
the  whole  of  any  lot,  where  any  part  of  it  was  needed, 
whenever  the  city  deemed  it  expedient  to  do  so.  There- 
after the  city  might  either  sell  the  excess  land  or  appro- 
priate it  to  some  public  use.  This  was  clearly  an  author- 
ization of  excess  condemnation  in  the  modern  concep- 
tion of  the  term.  But  this  law  was  declared  void.^o 
There  could  be  no  objection,  said  the  court,  to  a  taking 
by  the  city  with  the  owner's  consent;  without  such  con- 
sent, however,  this  would  be  a  taking  of  the  private 
property  of  one  person  for  the  private  use  of  another 
to  whom  the  city  conveyed  it.  In  South  Carolina,  like- 
wise, it  was  early  declared  that  the  legislature  could 
not  empower  a  city  to  condemn  remnants  without  the 
owner^s  consent.^^  A  Pennsylvania  law  enacted  in  1868, 
which  conferred  upon  the  Fairmount  Park  Commission 
of  Philadelphia  power  to  acquire  excess  remnants  by 
condemnation, 22  was  apparently  never  contested  before 
the  courts,  and  was  probably  made  use  of  only  in  a  single 

"  The  South  Carolina  statute  of  1810  was  not  in  question  in  the  Dunn 
case,  supra,  but  was  referred  to  with  approval.  A  Baltimore  ordinance  of 
1858,  enacted  under  the  law  of  1838  (every  ordinance  on  the  subject  since 
1838  had  contained  similar  provisions),  was  sustained  in  Mayor,  etc.,  of 
Baltimore  v.  Clunet,  23  Md.  449  (1865). 

"Laws  of  New  York,  1812,  ch.  174. 

so  In  the  matter  of  Albany  Street,  1 1  Wend.  (N.  Y.)  149  (1834) ;  reaffirmed 
in  Embury  v.  Connor,  3  N.  Y.  511  (1850),  and  Bennett  v.  Boyle,  40  Barb. 
(N.  Y.)  SSI  (1863). 

21  Duim  V.  City  of  Charleston,  Harper's  Law  (S.  C.)  189  (1824).  The  law 
in  question  was  enacted  in  1 8 1 7 .  The  view  thus  expressed  was  in  fact  dictum , 
for  by  a  very  strained  construction  of  the  law  the  court  held  that  the  legis- 
lature had  not  attempted  to  confer  such  powef . 

»Laws  of  Pennsylvania,  1868,  no.  1020. 


134  CITY  PROGRESS  AND  THE  LAW 

instance.23  In  1904  the  legislature  of  Massachusetts 
authorized  the  commonwealth  itself,  as  well  as  any  city, 
to  condemn  excess  remnants  in  cases  where  "the  rem- 
nant left  .  .  .  would  from  its  size  or  shape  be  unsuit- 
able for  the  erection  of  suitable  and  appopriate  build- 
ings, and  if  public  convenience  and  necessity  require 
such  taking."  Grudgingly,  the  supreme  court  of  Massa- 
chusetts gave  approval  to  this  statute. ^^  The  opinion 
declared : 

In  our  judgment  it  [the  statute]  goes  to  the  very  verge  of  con- 
stitutionality. The  grounds  on  which  we  are  inclined  to  sustain 
it .  .  .  are,  first,  that  there  can  be  no  taking  outside  the  location 
of  the  public  work,  except  for  a  remnant  of  an  estate  a  part  of  which 
is  actually  required  for  the  laying  out  or  alteration  of  the  public 
work,  and  then  only  if  the  remnant  left  after  taking  such  part  would, 
from  its  size  or  shape,  be  "unsuited  for  the  erection  of  suitable  and 
appropriate  buildings," — in  other  words,  only  when  there  is  a  rem- 
nant that  is  too  small  or  too  ill-shaped  to  be  of  any  practical  value 
for  the  use  to  which  valuable  land  is  commonly  put;  and  secondly, 
that  such  a  remnant  can  be  taken  only  upon  an  adjudication  that 
public  convenience  and  necessity  require  the  taking.  Unless  it  can 
be  said  that  public  convenience  and  necessity  never  can  require  the 
taking  of  such  a  remnant  the  statute  cannot  be  declared  uncon- 
stitutional. 

While  it  is  plain  that  a  city  or  town  cannot  take  land  outside  a 
public  work  for  speculative  purposes,  we  can  conceive  of  a  remnant 
of  an  estate,  a  part  of  which  is  necessarily  taken,  which  remnant  is 
so  small,  or  of  such  a  shape  and  of  so  little  value  that  the  taking  of 
it  in  the  interest  of  economy  or  utility,  or  in  some  other  public  in- 
terest, may  be  fairly  incidental  and  reasonably  necessary,  in  con- 
nection with  the  taking  of  land  for  the  public  work. 

It  will  be  observed  that  the  court  was  here  extremely 
vague  in  discussing  the  public  purpose  that  would  be 

23  Cushman,  Excess  Condemnation,  p.  6i. 

2*  Opinions  of  Justices,  204  Mass.  616  (1910). 


CITY  PLANNING— EXCESS  CONDEMNATION     135 

served  by  the  condemnation  of  the  limited  class  of  rem- 
nants to  which  the  law  applied. ^^  The  statute  itself 
permitted  condemnation  only  when  "public  convenience 
and  necessity  required."  It  would  seem  that  any  land 
that  is  required  by  "public  convenience  and  necessity" 
must  be  regarded  as  being  condemned  for  a  public  pur- 
pose or  use.  The  question  is :  what  public  convenience 
or  necessity  could  be  served  by  the  condemnation  of 
these  small-sized  or  ill-shaped  remnants?  The  court 
suggests  "economy"  and  "utility" — presumably  "public 
economy"  and  "public  utility."  The  latter  term  as  used 
in  this  connection  can  mean  only  public  usefulness ;  but 
useful  to  the  public  in  what  respect,  for  what  purpose? 
In  using  the  term  public  economy  the  court  probably 
had  in  mind  that  the  city  might  condemn  the  whole  and 
resell  the  excess  remnant  at  less  net  expense  than  it 
could  condemn  only  the  part  actually  needed ;  but  it  is 
difficult  to  see  why  this  should  be  possible  except  upon 
the  assumption  that  the  city  would  in  reselling,  inter- 
cept an  unearned  increment  of  value  created  by  the  im- 
provement. But  if  this  is  a  public  purpose  for  which  ex- 
cess condemnation  may  be  employed,  surely  it  should  not 
be  restricted  to  insignificant  and  ill-shaped  remnants. 

On  the  whole,  it  would  seem  that,  although  the  act 
in  question  was  sustained,  the  Massachusetts  court  had 
no  very  definite  idea  of  what  public  purpose  was  in  view. 
In  any  case,  it  is  manifest  that  an  act  hedged  about  with 
such  extreme  restrictions  could  be  of  small  practical 
avail.  We  have  in  point  of  fact  had  very  little  experi- 
ence with  statutes  providing  for  the  acquisition  of  rem- 

»  This  opinion  was  given  to  the  legislature  upon  request;  the  court  did 
not,  therefore,  have  before  it  any  specific  application  of  the  law.  This  doubt- 
less accounts  in  part  for  the  generality  of  the  discussion. 


136  CITY  PROGRESS  AND  THE  LAW 

ncints  without  the  consent  of  owners.  Moreover,  as 
already  pointed  out,  it  is  well  nigh  impossible  to  see  how 
the  taking  of  a  remnant  from  a  reluctant  owner  can  be 
justified  upon  any  ground  that  would  not  also  justify 
the  taking  of  a  lot  which  was  not  a  remnant. 

Excess  condemnation  for  the  ''protection^*  of 
public  improvements 

When  a  city  lays  out,  widens,  or  otherwise  improves 
a  street,  parkway,  or  boulevard,  it  often  has  a  purpose 
(whether  it  be  expressed  or  not,  and  whether  it  be  re- 
garded as  ''public"  or  not)  that  is  broader  than  the  mere, 
though  main,  purpose  of  furnishing  a  highway  for  travel. 
It  may  have  in  contemplation  a  highway  of  a  definite 
character — that  is,  character  as  determined  by  the  uses 
to  which  abutting  property  is  put — a  street  for  hand- 
some residences,  or  for  workmen's  houses,  or  for  com- 
mercial uses.  Now  the  policy  of  excess  condemnation 
has  been  urged,  perhaps  primarily,  as  an  instrumentality 
by  which  the  city  may  exercise  larger  control  over  the 
character,  as  thus  defined,  of  its  streets,  boulevards, 
parks,  and  other  public  places.  The  "protection"  of  a 
public  improvement  is  manifestly  a  vague  expression; 
but  it  seems  to  describe  as  well  as  any  other  the  general 
purpose  here  under  consideration. 

The  policy  of  condemning  property  for  the  "pro- 
tection" of  public  improvements  is  of  comparatively 
recent  advocacy  in  the  United  States.  As  yet  we  have 
had  more  constitutional  provisions  and  laws  upon  the 
subject  than  actual  exercises  of  the  power  conferred 
and  resulting  judicial  determinations  as  to  its  validity. 
An  examination  of  constitutional  provisions  and  laws 


CITY  PLANNING— EXCESS  CONDEMNATION      137 

upon  the  subject  reveals  that,  so  far  as  their  purposes 
are  disclosed  by  their  letter,  they  fall  into  two  general 
classes.26  There  are,  in  the  first  place,  those  which 
define,  at  least  in  general  terms,  the  purposes  for  which 
excess  condemnation  may  be  employed  and  restrict 
the  exercise  of  the  policy  to  these  purposes.  There  are, 
in  the  second  place,  those  which  upon  their  face  ap- 
parently authorize  the  use  of  the  policy  for  purposes 
which  are  wholly  undefined. 

In  the  first  of  these  categories  may  be  placed  an  Ohio 
law  of  1904,"  which  authorized  cities  to  condemn  prop- 
erty in  excess  of  actual  needs  "for  the  purpose  of  resell- 
ing such  land  with  reservations  in  the  deeds  of  such 
resale  as  to  future  use  of  such  lands  so  as  to  protect 
public  buildings  and  their  environs  and  to  preserve  the 
view,  appearance,  light,  air,  and  usefulness  of  public 
grounds  occupied  by  public  buildings  and  esplanades 
and  parkways  leading  thereto."  Of  the  same  gen- 
eral character  in  respect  to  an  indication  of  pur- 
poses are  the  constitutional  amendments  adopted  in 
Ohio  2^    and  Wisconsin  ^^  in   1912,   a  Virginia   law  of 

2^  A  valuable  analytical  table  of  constitutional  provisions  and  statutes 
upon  the  subject   is  found   in   Cushman,  Excess  Condemnation,   pp.  218- 

239- 

27  Laws  of  Ohio,  1904,  p.  333,  amending  sec.  10  of  the  municipal  code  of 
1902;  reenacted  without  alteration,  ibid.,  1908,  p.  207;  General  Code  of 
Ohio,  1910,  I,  p.  788,  sec.  3677,  par.  12. 

28  Art.  XVIII,  sec.  10.  This  grant  is  greatly  restricted  by  the  provision 
that  bonds  issued  for  such  purpose  "shall  be  a  lien  only  against  the  property 
so  acquired  for  the  improvement  and  excess."    Infra,  159, 

29  Art.  XI,  sec.  3a.  A  proposed  amendment  of  broader  scope  was  de- 
feated in  Wisconsin  in  1914.  Amendments  requiring  that  restrictions  be  im- 
posed on  excess  property  when  resold  were  also  defeated  in  California  (Art. 
XI,  sec.  20)  in  1914  and  again  in  1915,  and  in  New  Jersey  (Art.  IV,  sec.  9) 
in  1915.  A  similar  amendment  was  proposed  in  Pennsylvania  (Art.  IX, 
sec.  6)  in  1915  but  failed  to  pass  the  legislature  in  1917. 


138  CITY  PROGRESS  AND  THE  LAW 

1906,3''  a  Pennsylvania  law  of  1907,31  a  Maryland  law 
of  1908,32  two  Wisconsin  laws  of  1909  cind  another  of 
1911,33  an  Oregon  law  of  1913,3^  and  two  New  York 
laws,  of  191 1  and  1915.3^ 

In  the  case  of  every  one  of  these  constitutional  pro- 
visions and  statutes,  the  purposes  for  which  the  policy 
of  excess  condemnation  may  be  resorted  to  are  set 
forth  in  more  or  less  general  terms.  In  spirit,  if  not 
indeed  in  letter,  they  limit  the  use  of  the  policy  to  the 
purposes  indicated.36  The  question  is:  are  these  pur- 
poses public  purposes?  In  only  one  or  two  jurisdictions 
has  this  question  been  considered. 

The  Pennsylvania  law  of  1907  authorized  cities  to 

»oActs  of  Virginia,  1906,  ch.  194;  amended,  ihid.,  1916,  ch.  71,  so  as  to 
authorize  the  taking  of  excess  property  for  the  purpose  of  replotting,  as  well 
as  for  "imposing  limitations  as  to  the  uses  thereof." 

'^  Laws  of  Pennsylvania,  1907,  no.  315. 

82  Laws  of  Maryland,  1908,  ch.  166. 

8«  Laws  of  Wisconsin,  1909,  chs.  162,  165;  ibid.,  191 1,  ch.  486. 

"Laws  of  Oregon,  1913,  ch.  269. 

86  Laws  of  New  York,  1911,  ch.  776;  ihid.,  1915,  ch.  593.  The  1911  law 
authorized  the  city  of  New  York,  in  connection  with  the  improvement  of 
its  waterfront  facilities,  to  acquire  lands  "additional  and  adjacent"  to  ter- 
minal ways  or  stations  and  to  dispose  of  such  lands  "after  the  same  shall  have 
been  replotted,  regraded  or  otherwise  adapted  for  such  access,  use  or  im- 
provement .  .  .  subject  to  such  restrictions  as  said  board  (of  estimate 
and  apportionment)  may  see  fit  to  impose  thereon  to  promote  such  access 
or  use  to  effect  such  improvement." 

8«  It  may  be  urged,  of  course,  that  the  city  in  reselling  might  impose  re- 
strictions of  so  negligible  a  character  that  the  purposes  indicated  by  the  law 
would  not  in  fact  be  accomplished.  This  would  be  a  difficult  matter  to  con- 
trol, for  it  is  obvious  that  large  discretion  must  be  vested  in  the  authorities 
empowered  to  carry  out  the  policy.  A  lower  Pennsylvania  court,  however, 
declared  void  an  ordinance  of  Philadelphia  on  the  ground  that  it  did  not 
specify  the  restrictions  that  should  be  imposed.  Pennsylvania  Mutual  Life 
Ins.  Co.  V.  Philadelphia,  22  Pa.  Dist.  195  (1913).  The  supreme  court  of  the 
state  subsequently  held  void  the  statute  under  which  the  ordinance  was 
enacted;  ibid.,  242  Pa.  St.  47  (1913). 


CITY  PLANNING— EXCESS  CONDEMNATION     139 

condemn  property  in  excess  of  what  was  needed  for  cer- 
tain public  improvements  and  to  resell  such  property 
'with  such  restrictions  in  the  deeds  of  resale  in  regard 
to  the  use  thereof  as  will  fully  insure  the  protection  of 
such  public  parks,  parkways  and  playgrounds,  their 
environs,  the  preservation  of  the  view,  appearance, 
light,  air,  health  and  usefulness  thereof."  Brought  be- 
fore the  highest  court  of  the  state,  this  statute  was  de- 
clared void.3^  Briefly  put,  the  argument  of  the  court 
was  that  a.'public  use"  is  a  ''use  by  the  public."  In  this 
case  the  'protection  of  the  highway  is  the  only  'public 
use'  to  which  the  land  is  to  be  applied."  But  this  is  not  a 
"use  by  the  public."  "Saving  the  restriction  contained 
in  the  conveyance,  the  city  can  exercise  no  control  over 
it" — the  land  so  condemned — "and  hence  cannot  use  it 
for  any  purpose."  Even  if  it  be  conceded  that  it  is  a 
"legitimate  public  use"  to  "protect  the  highway  and 
preserve  the  light,  air,  etc.,"  the  city  "is  not  permitted 
to  hold  it  for  that  or  any  other  public  purpose."  The 
act  simply  authorizes  the  city  to  take  the  property  of 
one  person  and  convey  it  to  another. 

In  a  recent  Maryland  case  ^^  the  excess  condemnation 
law  enacted  in  that  state  in  1908  was  before  the  supreme 
court.  As  a  result,  however,  both  of  the  nature  of  the 
action,  which  was  to  restrain  a  bond  issue,  and  of  the 
highly  complicated  statutory  situation  that  was  in- 
volved, it  is  impossible  to  declare  whether  the  court 
intended  to  uphold  the  policy  of  excess  condemnation, 
or  to  draw  the  teeth  of  the  statute,  or  to  leave  the  entire 
question  open.    Certain  it  is  that  in  the  opinion  that 

"  Pennsylvania  Mutual  Life  Ins.  Co.  v.  Philadelphia,  242  Pa.  St.  47  (1913)- 
»8  Duke  Bond  v.  Mayor,  etc.,  of  Baltimore,  116  Md.  683  (191 1). 


140  CITY  PROGRESS  AND  THE  LAW 

was  read  nothing  was  added  to  or  taken  from  the  sum 
of  legal  reasoning  upon  the  subject. 

In  1910  the  Massachusetts  House  of  Representatives 
asked  the  supreme  court  of  that  state  whether  the  legis- 
lature could  constitutionally  authorize  the  city  of 
Boston  to  lay  out  a  commercial  thoroughfare  through 
the  heart  of  the  city  and  to  take  by  condemnation  land 
on  either  side  thereof  in  order  to  replot.  and  resell  the 
same  under  restrictions  that  would  insure  its  use  for 
suitable  warehouses,  mercantile  establishments,  and 
other  buildings  suited  to  the  needs  of  commerce  and 
trade.  The  court  replied  with  an  emphatic  ''no".  "It 
is  plain,"  the  opinion  recited,  "that  a  use  of  the  property 
to  obtain  the  possible  income  or  profit  that  might  enure 
to  the  city  from  the  ownership  and  control  of  it  would 
not  be  a  public  use.  .  .  It  is  equally  true  and  in- 
dubitable that  a  management  and  use  of  such  property 
to  promote  the  interests  of  merchants  or  traders  who 
might  occupy  it,  and  to  furnish  better  facilities  for 
doing  business  and  making  profits,  would  not  be  a  pub- 
lic use  of  the  real  estate."^® 

The  three  opinions  just  mentioned  are,  down  to  the 
present  time,  the  only  judicial  utterances  upon  the  sub- 
ject of  excess  condemnation  for  the  "protection"  of 
public  improvements.  Reading  them,  one  can  scarcely 
escape  the  conclusion  that  the  last  word  has  not  been 
said.  The  apparent  burden  of  the  Pennsylvania  opinion 
is  that  "use  by  the  public"  involves  continuous  owner- 
ship by  the  public.  Almost  the  entire  history  of  the 
power  of  eminent  domain  belies  this  notion.     If  it  be 

89  Opinion  of  Justices,  204  Mass.  607  (1910);  reaffirmed  in  an  opinion  to 
the  Senate,  which  had  presented  the  same  questions  in  somewhat  modified 
phraseology;  Opinion  of  Justices,  204  Mass.  616  (1910). 


CITY  PLANNING— EXCESS  CONDEMNATION     141 

conceded,  as  the  Pennsylvania  court  conceded,  though 
probably  only  for  argument,  that  the  * 'protection"  of  a 
public  improvement  is  a  ''legitimate  public  use,"  is  the 
test  of  public  ownership  a  proper  test  to  apply?  A 
railway  or  other  public  service  corporation  may  be — 
usually  is — vested  with  the  power  of  eminent  domain. 
If  the  operation  of  a  railway  and  the  "protection"  of  a 
public  improvement  are  equally  "public"  purposes,  how 
can  it  be  asserted  that  private  ownership  is  of  no  im- 
portance in  the  one  case  but  is  an  insuperable  objection 
in  the  other?  What  possible  difference  can  there  be 
between  the  condemnation  of  property  for  a  privately 
owned  railway,  which  property  becomes  impressed  with 
a  public  use  because  of  the  character  of  railway  business, 
and  the  condemnation  of  property  for  any  other  private 
person  when  the  property  likewise  becomes  impressed 
with  a  public  purpose  by  reason  of  limitations  that  are 
imposed  upon  its  use?  The  public  has  no  right  of  owner- 
ship in  or  access  to  a  railway  shop;  it  enjoys  the  same 
lack  of  rights  in  respect  to  property  acquired  and  sub- 
sequently sold  under  the  policy  of  excess  condemnation. 
Its  right  in  each  case  consists  merely  in  a  right  of  ser- 
vice— the  right  to  be  carried  or  to  have  goods  carried  in 
the  one,  the  right  to  have  a  highway  or  other  public 
ground  "protected"  in  the  other.  A  private  owner  of 
property  condemned  and  sold  under  the  policy  of  excess 
condemnation  may  be  regarded  as  a  "public  agent"  just 
as  reasonably  as  may  a  railway  corporation.  In  other 
words,  it  seems  perfectly  patent  that  to  concede  that 
the  purposes  indicated  by  the  Pennsylvania  law  were 
public  purposes  was  to  concede  the  entire  point  at 
issue. 


142  CITY  PROGRESS  AND  THE  LAW 

The  opinion  of  the  Massachusetts  court  goes  more 
nearly  to  the  core  of  the  issue,  whether  one  agree  or 
disagree  with  the  conclusion  reached.  It  nevertheless 
appears  to  fall  very  far  short  of  a  complete  analysis  of 
the  purposes  sought.  Every  one  must  recognize  that 
the  condemnation  and  resale  of  property  subject  to 
restrictions  as  to  use  operates  to  transfer  the  property 
of  one  private  person  to  another.  This,  it  would  seem, 
has  nothing  to  do  with  the  case,  for  so  does  the  con- 
demnation of  property  for  railway  uses.  The  issue  can- 
not turn  upon  the  matter  of  private  ownership;  it  is 
solely  an  issue  as  to  the  nature  of  the  purpose  that  is 
sought.  Boldly,  and  probably  fairly,  stated,  the  pur- 
pose that  is  sought  must  be  rested  upon  one  or 
more  of  the  following  considerations:  aesthetics,  pub- 
lic health,  or  the  creation  and  stabilization  of  realty 
values. 

As  we  have  had  occasion  to  note,^^  more  than  one 
court  has  intimated  that  while  the  police  power  may  not 
be  exercised  for  aesthetic  purposes,  the  power  of  eminent 
domain  might  perhaps  be  employed  to  that  end.  As 
yet,  however,  no  court  has  actually  applied  this  as  a 
rule  of  law.^i  The  pros  and  cons  of  this  proposition 
scarcely  call  for  extended  discussion.  Individual  opin- 
ions will  naturally  differ  after  all  has  been  said.  Certain 
it  is,  however,  that  a  refusal  to  establish  this  rule  should 
not  be  made  by  a  consideration  of  extreme  possibilities 
— more  especially  since  any  attempt  to  condemn  excess 
property  for  the  purpose  of  imposing  capricious  restric- 
tions in  the  name  of  aesthetics  would  be  foredoomed  to 

*^ Supra,  67,  77,  79,  94,  III,  118,  119. 

"  The  Massachusetts  court  approached  very  near  to  its  application  in 
Attorney-General  v.  Williams,  174  Mass.  476  (1899),  supra,  94. 


CITY  PLANNING— EXCESS  CONDEMNATION     143 

practical  failure.  Money  collected  from  taxpayers  is 
freely  expended  in  the  embellishment  of  parks  and 
boulevards.  The  purpose  is  obviously  aesthetic;  but 
nobody  is  heard  to  urge  that  this  is  a  private  purpose. 
A  heedless  owner,  by  the  use  to  which  he  devotes  his 
abutting  property,  ruthlessly  impairs  an  aesthetic  result 
which  the  city  has  sought  to  create.  It  does  not  seem 
wholly  unreasonable  that  the  city  should  be  legally 
competent  to  prevent  this.  The  condemnation  of  this 
property  and  its  subsequent  sale  under  limitations  in 
respect  to  its  use  is  certainly  one  method  of  prevention. 
Whether  it  is  the  most  satisfactory  and  the  most  equi- 
table method  is  open  to  debate.  But  that  is  a  question 
of  policy  rather  than  of  law — similar,  for  example,  to 
the  question  whether  a  public  improvement  should  be 
paid  for  by  special  assessments  or  by  general  taxation. 
If  it  be  conceded  that  it  is  a  public  purpose  to  prevent 
the  impairment  of  an  aesthetic  value  created  by  the 
public — ^which  is,  after  all,  a  complete  statement  of  the 
question  involved — the  policy  of  excess  condemnation, 
pursued  for  the  achievement  of  that  purpose,  should 
doubtless  be  sustained.  In  the  course  of  time  it  doubt- 
less will  be  so  sustained. 

In  spite  of  themention of  "light," 'air,"and ''health,'* 
in  many  of  the  laws  which  lay  down  the  purposes  for 
which  excess  condemnation  may  be  employed,  it  is 
probably  fair  to  say  that  in  most  of  them  the  purpose 
of  protecting  the  public  health  is  in  fact  wholly  remote. 
Any  reasonable  limitation  upon  the  use  of  private  prop- 
erty in  the  interest  of  the  public  health,  as  in  the  case  of 
the  regulation  of  building  heights,  or  the  banishment  of 
noxious   trades  and  industries,  can  be  accomplished 


144  CITY  PROGRESS  AND  THE  LAW 

under  the  police  power.  And  while  it  may  be  argued, 
as  above,  that  excess  condemnation  is  at  least  one 
method  by  which  the  interests  of  the  public  health  may 
be  protected,  it  is  well  nigh  inconceivable  that  any  city 
would  embark  upon  a  policy  fraught  with  so  many 
economic  perils  to  secure  an  end  which  might  much  more 
easily  be  attained  by  other  means. 

The  condemnation  of  excess  property  might,  of 
course,  be  undertaken  for  the  purpose  of  affecting 
housing  conditions;  its  relation  to  public  health  would 
then  be  clearly  established.  In  at  least  one  instance  in 
the  United  States  its  use  has  been  authorized  for  this 
purpose.  In  191 2  the  supreme  court  of  Massachusetts, 
upon  request  for  its  opinion,  informed  the  legislature 
that  a  proposed  statute  conferring  upon  the  homestead 
commission  power  to  condemn  land  for  the  purpose  of 
erecting  workmen's  houses  would  be  unconstitutional 
if  enacted.  The  court  saw  no  further  than  that  ''the 
home  of  one  wage-earner  might  be  taken  by  the  power 
of  the  commonwealth  for  the  purpose  of  handing  it  over 
to  another  wage-earner."  ^^  Ini9i5a  constitutional 
amendment  was  adopted  which  directly  empowered 
this  commission  to  use  the  power  of  eminent  domain 
for  the  purpose  of  relieving  congestion  of  population  by 
providing  such  houses.  Whether  this  amendment  is 
valid  under  the  federal  guaranty  of  due  process  of  law 
has  apparently  not  been  contested.  The  proposal  that 
the  city  should  construct  workmen's  houses  either  for 
sale  or  lease  is  fairly  novel  among  American  municipal 
functions.  So  clearly,  however,  is  the  purpose  in  view 
related  to  the  promotion  of  public  health  that  it  is  diffi- 

42  Opinions  of  Justices,  211  Mass.  624  (1912). 


CITY  PLANNING— EXCESS  CONDEMNATION     145 

cult  to  see  why  the  use  of  excess  condemnation  for  such 
a  purpose  should  not  be  sustained. 

It  has  already  been  noted  ^^  that  the  stabilization  of 
realty  values  is  one  of  the  purposes  for  which  the  general 
policy  of  zoning  cities  has  been  urged.  There  is  no 
question  that  the  creation  as  well  as  the  stabilization  of 
such  values  is  likewise  one  of  the  purposes  for  which 
the  policy  of  excess  condemnation  has  been  put  forward 
under  the  broadly  expressed  design  of  "protecting"  pub- 
lic improvements.  The  mere  replotting  of  abutting 
lands,  whether  solely  for  the  absorption  of  ill-adapted 
remnants  or  for  the  larger  purpose  of  creating  indivisible 
lots  of  size  and  shape  adapted  to  particular  uses,^'*  may 
doubtless  be  fairly  regarded  in  this  light.  The  employ- 
ment of  excess  condemnation  with  such  an  end  in  view 
may  be  said  to  ''protect  the  usefulness"  of  the  improve- 
ment in  question;  but  "usefulness"  in  this  connection, 
whether  the  reference  be  to  an  indirect  "usefulness"  to 
the  general  public  or  the  more  direct  "usefulness"  to  a 
portion  of  the  public — the  purchasers  of  the  newly 
formed  lots — is  dependent  wholly  upon  the  estab- 
lishment and  maintenance  of  private  realty  values. 
The  protection  of  such  values  is  even  more  clearly 
evidenced  in  a  restriction  that  property  along  a  bou- 
levard, park,  or  parkway  may  be  improved  only 
with  residences  that  satisfy  certain  minimum  require- 
ments. 

It  has  already  been  suggested  that  the  time  is  prob- 
ably ripe  for  the  inclusion  of  the  stabilization  of  realty 

*^  Supra,  121  S. 

**  As  in  the  case  of  the  proposed  New  York  waterfront  improvements  or 
the  proposed  commercial  thoroughfare  in  Boston. 


146  CITY  PROGRESS  AND  THE  LAW 

values  among  the  recognized  subjects  of  the  police 
power.  Nothing  need  be  added  here  to  the  arguments 
already  adduced  upon  that  point.^^  Surely,  however, 
if  this  be  regarded  as  a  proper  subject  for  police  legis- 
lation, there  can  be  no  question  that  it  is  likewise  a 
public  purpose  for  which  the  power  of  eminent  domain 
may  appropriately  be  exercised. 

Excess  condemnation  for  undefined  purposes 

A  few  of  the  constitutional  provisions  and  statutes 
upon  this  subject,  while  enumerating  purposes  similar 
to  those  mentioned  above,  expressly  authorize  the  dis- 
posal of  excess  lands  "with  or  without  suitable  restric- 
tions." In  this  category  may  be  placed  a  Massachu- 
setts constitutional  amendment  of  191 1  and  several 
laws  enacted  pursuant  thereto,^^  a  Rhode  Island  con- 
stitutional amendment  of  1916,^^  a  Connecticut  statute 
of  1907  applicable  to  Hartford,  and  a  similar  statute  of 
1913  applicable  to  New  Haven.^^  Still  another  group 
of  amendments  and  statutes  authorize  the  condemna- 
tion of  excess  property  without  indicating  even  in 
general  terms  the  purpose  for  which  the  power  may  be 
exercised  and  without  making  any  reference  to  the  im- 
position of  restrictions.    Of  this  character  are  the  New 

*^  Supra,  121  ff. 

«  Art.  X,  Part  I,  submitted  and  adopted  after  the  adverse  opinions  men- 
tioned, supra,  140.  See  also  an  amendment  which  wan  proposed  by  the  gen- 
eral court  in  19 14  but  which  failed  to  be  reenacted  in  191 5;  Acts  and  Resolves 
of  Massachusetts,  1914,  p.  799.  Ihid.,  1912,  ch.  186;  ihid.,  1913,  chs.  201, 
326  (specific  street  improvements  in  Worcester);  ibid.,  1913,  ch.  703  (specific 
street  improvement  in  Salem);  ihid.,  1912,  ch.  715,  infra,  148. 

"Alt.  XVII. 

*8  Special  Laws  of  Connecticut,  1907,  no.  61,  sec.  7;  ihid.,  1913,  no.  243, 
sec.  8. 


CITY  PLANNING— EXCESS  CONDEMNATION     147 

York  constitutional  amendment  of  1913  ^^  and  a  pur- 
suant statute  applicable  to  Syracuse, ^^  a  New  Jersey 
law  of  1870  applicable  to  Newark,^^  and  a  Massachu- 
setts law  of  1 913  which  vested  power  in  the  state  high- 
way commission  with  respect  to  a  specific  street  ini- 
provement.^2 

Now  it  seems  clear  that,  unless  the  only  purpose  of  the 
city  is  to  secure  financial  recoupment  for  its  outlay  or  to 
gather  into  the  public  treasury  the  total  increment  of 
value  created  by  the  improvement  by  selling  excess 
lands  at  a  profit  above  the  condemnation  awards,  the 
imposition  of  restrictions  is  indispensable  to  the  full  ac- 
complishment of  any  purpose  that  may  he  regarded  as 
public  in  character.  Even  if  the  purpose  is  nothing  more 
than  the  replotting  of  the  land  into  ''suitable  building 
sites,"  it  would  seem  that  restrictions  are  necessary; 
otherwise  there  would  be  nothing  to  prevent  the  new 
owners  from  defeating  the  city's  purpose  by  reselling 
"unsuitable"  sites  from  parts  of  their  holdings.  In  the 
absence  of  restriction  in  his  purchase  deed  an  owner  is 
entirely  competent  to  divide  and  sell  off  his  land  as  he 
pleases;  and  it  is  open  to  grave  doubt  whether  the  re- 
plotting  of  land  could  be  sustained  as  a  public  purpose 

<»  Art.  I,  sec.  7.  A  proposed  amendment  of  even  broader  scope  was  de- 
feated at  the  polls  in  191 1.  A  similar  amendment  was  defeated  in  Wisconsin 
in  1914. 

"  Laws  of  New  York,  1914,  ch.  300. 

61  Laws  of  New  Jersey,  1870,  ch.  117.  This  law  appointed  a  commission 
to  purchase  or  condemn  all  the  property  in  a  section  of  Newark  known  as 
Clinton  Hill.  After  relocating  streets  and  alleys  the  commission  was  em- 
powered to  replot  the  land  and  sell  off  the  lots.  No  reference  was  made  to 
the  imposition  of  restrictions.  It  is  not  clear  that  this  was  a  housing  project, 
although  the  preamble  recited  among  other  things  the  danger  from  fire  by 
reason  of  the  narrow  streets  in  the  section.  The  law  was  apparently  not  con- 
tested before  the  courts. 

M  Acts  and  Resolves  of  Massachusetts,  19 13,  ch.  778. 


148  CITY  PROGRESS  AND  THE  LAW 

under  circumstances  which  might  result  in  an  immediate 
defeat  of  the  purpose  by  private  persons. ^^ 

It  is  probable  that  under  every  one  of  these  laws  the 
city,  becoming  the  fee  simple  owner  of  the  land,  could 
resell  it  subject  to  restrictions  if  it  chose  to  do  so.  But 
the  fact  remains  that  these  laws  permit  the  resale  without 
restrictions.^^  On  their  face  the  power  which  they  con- 
fer might  be  exercised  for  no  public  purpose  whatever. 
It  seems  fair  to  conclude,  therefore,  that,  at  least  when 
they  are  considered  independently  of  any  actual  exer- 
cise of  the  power  conferred,  in  which  a  purpose  might 
be  disclosed  by  the  character  of  limitations  imposed, 
they  can  be  sustained  as  such  only  upon  grounds  of 
finance. 

One  law  of  this  kind  has  been  brought  before  the 
courts.  This  was  the  Massachusetts  law  of  1912  ^^ 
which  empowered  the  Salisbury  Beach  Reservation 
Commission  to  condemn  certain  lands  along  the  sea- 
shore, and  to  sell  or  lease,  with  or  without  restrictions 
as  to  use,  such  parts  thereof  as  might  not  be  needed  for 
a  public  reservation.  The  court  very  promptly,  and 
it  would  seem  very  properly,  declared  this  statute  void 

6s  Of  course  it  may  be  argued  that,  having  replotted  the  land  to  advantage, 
the  city  may  trust  the  rest  to  the  good  sense  and  the  business  judgment  of  the 
purchasers.  But  the  law  must  take  account  of  possibilities,  especially  when, 
as  in  this  case,  it  is  proposed  to  use  an  important  power  of  government  for  a 
borderland  purpose. 

"  The  New  York  constitutional  amendment  merely  permits  the  legis- 
lature to  authorize  cities  to  condemn  excess  property.  The  validity  of  this 
constitutional  provision,  as  a  federal  question,  could  be  contested  only  in 
connection  with  some  statute  enacted  pursuant  thereto.  It  is  certain  that 
the  legislature  in  enacting  such  a  law  could  define  purposes  and  require  the 
imposition  of  restrictions.  Of  the  two  laws  enacted  under  this  provision,  one 
required  restrictions  (Laws  of  New  York,  1915,  ch.  593)  and  the  other  did 
not  {ibid.,  1914,  ch.  300). 

56  Acts  and  Resolves  of  Massachusetts,  191 2,  ch.  715. 


CITY  PLANNING— EXCESS  CONDEMNATION     149 

on  the  ground  that  no  public  purpose  was  disclosed. ^^ 
The  constitutional  amendment  of  1911,  which  author- 
ized excess  condemnation,  was  not  even  referred  to  in 
the  course  of  the  opinion  that  was  handed  down. 

Excess  condemnation  for  financial  profit 

Both  in  law  and  in  practice  the  policy  of  assessing 
upon  adjacent  property  (on  the  theory  of  special  benefit 
conferred)  some  part  or  the  whole  of  the  cost  of  certain 
public  improvements  is  firmly  established  in  the  United 
States.  So  far  as  mere  recoupment  for  outlay  is  con- 
cerned, this  policy,  it  would  seem,  ought  to  satisfy  the 
necessities  of  the  case;  where  there  are  constitutional 
or  statutory  prohibitions  against  assessing  the  entire 
cost  of  the  improvement,  let  these  prohibitions  be  re- 
moved, if  complete  recoupment  is  the  end  that  is  sought. 
It  sometimes  happens,  however,  that  the  unearned 
increment  of  value  created  by  a  public  improvement  is 
far  in  excess  of  its  total  cost.  Why  should  not  the 
public  secure  this  entire  increment  to  itself  by  condemn- 
ing the  adjacent  land  at  its  value  before  the  improve- 
ment is  made,  and  selling  it  at  its  increased  value  after 
it  is  made? 

Unearned  increments  in  city  land  values  are  due  to  a 
variety  of  causes.  Public  improvements,  even  if  they 
be  only  ordinary  street  improvements,  are  perhaps  al- 
ways contributory;  occasionally,  they  are  the  sole  cause 
of  a  direct  and  measurable  increment.  It  may  seem  a 
small  step  to  cross  from  the  policy  of  levying  special 
assessments,  by  which  a  part  of  the  unearned  increment 

w  Salisbury  Land  &  Improvement  Co.  v.  Commonwealth,  215  Mass.  371 
(1913). 


ISO  CITY  PROGRESS  AND  THE  LAW 

is  intercepted,  to  a  policy  of  excess  condemnation  under 
which  the  whole  of  it  might  be  secured  to  the  public. 
Doubtless  the  principal  difference  lies  in  the  fact  that 
special  assessments  are  very  nearly,  if  not  quite,  as- 
similable to  ordinary  taxes,  while  the  acquisition  of  land 
for  the  more  or  less  speculative  purpose  of  reselling  it 
at  a  profit  is  more  nearly  assimilable  to  ordinary  busi- 
ness. 

We  have  no  judicial  opinions  directly  in  point  upon 
the  validity  of  excess  condemnation  when  undertaken 
for  financial  profit.  The  nearest  approach  to  a  con- 
sideration of  such  a  question  is  found  in  certain  cases 
which  deal  with  the  competence  of  cities  to  acquire  land 
generally  for  purposes  of  gain — in  other  words,  to  go 
into  the  real  estate  business."  Most  of  these  cases  have, 
however,  involved  merely  questions  of  charter  power 
and  not  a  question  of  constitutionality.  Moreover,  in 
any  event,  it  may  be  strongly  argued  that  the  taking  of 
land  for  the  purpose  of  securing  an  unearned  increment 
that  is  directly  and  entirely  traceable  to  a  specific  pub- 
lic improvement  may  be  distinguished  in  kind  from  the 
acquiring  of  land  for  the  more  general  purpose  of  profit- 
ing by  rents  or  of  securing  unearned  increments  that 
are  due  to  a  combination  of  indeterminate  causes.  It 
seems  unnecessary,  therefore,  to  discuss  these  cases  in 
detail. 

Whatever  bearing  these  cases  may  have  upon  the 
question  whether  excess  condemnation  may  be  used  for 

B7  First  Municipality  of  New  Orleans  v.  McDonough,  2  Rob.  (La.)  244 
(1842);  New  Shoreham  v.  Ball,  14  R-  I-  566  (1884);  Champaign  v.  Harmon, 
98  111.  491  (1881);  Hayward  v.  Red  Clifif,  20  Col.  33  (1893);  Hunnicutt  v. 
City  of  Atlanta,  104  Ga.  i  (1898);  Libby  v.  City  of  Portland,  105  Me.  370 
(1909). 


CITY  PLANNING— EXCESS  CONDEMNATION     151 

the  making  of  financial  profits,  it  should  be  borne  in 
mind  that  no  constitutional  provision  or  statute  upon 
this  subject  has  as  yet  specifically  named  this  as  a  pur- 
pose. It  is  highly  improbable  that  the  courts  would 
be  inclined  to  sustain  this  as  a  public  purpose  under 
those  statutes  which  apparently  permit  the  condemna- 
tion of  excess  property  for  purposes  that  are  wholly 
undefined. 

Alternatives  to  excess  condemnation 

With  the  exception  of  replotting  (including  the  ab- 
sorption of  remnants),  which  would  manifestly  involve 
changes  of  title,  it  is  probable  that  every  one  of  the 
purposes  for  which  excess  condemnation  has  been  put 
forward  could  be  accomplished  by  action  short  of  a 
complete  taking  of  title  to  the  land.  The  interests  of 
aesthetics  and  public  health,  and  the  creation  and  stabi- 
lization of  realty  values  by  imposing  conditions  as  to 
use  could  no  doubt  be  secured  by  the  condemnation  of 
easements  merely. ^^  Financial  recoupment  could  be 
attained  by  the  removal,  where  they  exist,  of  limitations 
upon  the  proportion  of  the  cost  of  public  improvements 
that  may  be  assessed  upon  adjacent  property.  The 
interception  by  the  public  of  the  whole  of  the  unearned 
increment  created  by  a  public  improvement  could  be 
brought  about  by  the  development  of  some  form  of 
increment  taxes.  The  possibilities  that  inhere  in  these 
alternatives  have  little,  if  anything,  to  do  with  the 
primary  question  of  law  involved,  and  may,  therefore, 
be  omitted  from  discussion. 

»«As  in  the  case  of  the  Copley  Square  project;  Attorney-General  v. 
Williams,  174  Mass.  476  (1899);  supra,  94. 


152  CITY  PROGRESS  AND  THE  LAW 

From  the  analysis  that  has  been  attempted  above,  it 
seems  obvious  that  the  legal  obstacles  arising  out  of  the 
rule  of  public  use  or  purpose  in  its  application  to  excess 
condemnation,  although  large  and  somewhat  compli- 
cated, are  not  necessarily  insuperable.  That  there  has 
been  so  little  actual  employment  of  the  policy  in  spite  of 
the  number  of  laws  authorizing  its  use  may  perhaps  be 
taken  to  indicate  that  there  are  practical  objections, 
due  to  patent  financial  hazards,  which  loom  quite  as 
large  as  any  obstruction  ascribable  to  the  law.  In  due 
time  the  legal  issue  will  be  settled  by  the  United  States 
Supreme  Court.  In  the  meantime,  it  would  seem  the 
part  of  wisdom  that  the  purposes  for  which  excess  con- 
demnation may  be  used  should  be  written  as  clearly  as 
possible  upon  the  face  of  the  constitutional  provisions 
and  statutes  dealing  with  the  subject. 


CHAPTER  VI 

MUNICIPAL  OWNERSHIP  OF  PUBLIC 
UTILITIES 

The  term  * 'public  utility"  has  not  received  any  con- 
siderable amount  of  definition  at  the  hands  of  the 
American  courts.  In  the  state  of  Oklahoma,  however, 
where  this  term  is  employed  in  the  constitution  of 
1908,  the  courts  have  been  called  upon  to  give  it  some 
precision  of  meaning.  It  has  been  held  that  the  term 
*' public  utility"  is  synonymous  with  the  term  "public 
use;"  such  things,  therefore,  as  sewers,^  convention 
halls,2  public  parks,^  and  fire  departments  ^  have  been 
declared  to  be  public  utilities.  Defined  in  this  manner 
it  seems  obvious  that  the  term  in  question  loses  prac- 
tically all  of  its  distinctive  meaning.  Any  and  every 
function  undertaken  by  a  city  could  be  gathered  under 
its  expansive  wings. 

What  is  a  public  utility  ? 

It  seems  certain  that  the  popular  concept  of  the  term 
"public  utility"  is  not  in  harmony  with  the  views  of  the 
supreme  court  of  Oklahoma.  It  may  be  difficult  to  de- 
fine the  term  with  exactness,  but  it  has  unquestionably 

^  State  ex  rel.  Edwards  v.  Millar,  21  Okla.  448  (1908). 

2  State  ex  rel.  Manhattan  Construction  Co.  v.  Barnes,  22  Okla.  191  (1908). 

'  City  of  Ardmore  v.  State  ex  rel.  Best,  24  Okla.  862  (1909);  Barnes  v. 
Hill,  23  Okla.  207  (1909). 

*  Coleman  v.  Frame,  26  Okla.  193  (1910);  Oklahoma  City  v.  State,  ex 
rel.  Edwards,  28  Okla.  780  (191 1). 


154  CITY  PROGRESS  AND  THE  LAW 

been  associated  with  those  functions  which  necessitate 
the  making  of  such  pecuHar  uses  of  the  public  highways 
or  waters  as  to  require  (if  privately  owned  and  oper- 
ated) a  grant  of  special  privilege  from  the  government, 
or  with  functions  in  which,  because  of  their  monopolistic 
or  quasi-monopolistic  character,  the  public  has  a  peculiar 
interest.  One  or  both  of  these  elements  certainly  enters 
into  the  meaning  of  the  term  "public  utility"  as  it  is 
commonly  understood  and  employed.  There  is  no 
doubt,  also,  that  the  method  by  which  certain  municipal 
functions  are  financed  has  considerable  influence  in  de- 
termining the  general  concept  of  the  term.  From  the 
viewpoint  of  economic  theory  it  may  be  that  a  payment 
for  gas  or  water  is  a  private  price  when  it  is  made  to  a 
private  corporation,  but  is  a  fee  (and,  therefore,  more 
nearly  assimilable  to  a  tax)  when  it  is  made  directly  to  a 
city  that  owns  and  operates  its  waterworks  or  gas 
works. ^  However  this  may  be,  it  is  difficult  to  make 
either  the  courts  or  the  public  understand  that  there  is 
any  substantial  difference  in  the  character  of  these  two 
payments.  If  a  city  owning  a  waterworks  should  decide 
to  supply  water  without  charge  to  the  consumer  in  pro- 
portion to  his  measurable  special  benefit,  and  to  finance 
this  undertaking  by  general  taxation,  there  is  little 
doubt  that  the  business  of  supplying  water  would  in  the 
popular  mind  cease  to  be  regarded  as  a  public  utility. 
In  other  words,  it  is  usual  to  include  within  the  category 
of  public  utilities  only  that  group  of  enterprises  which 
may,  under  special  allowance  by  the  government,  be 
undertaken  by  private  persons  for  profit  or  which  may 

^  For  a  discussion  of  the  economic  theories  involved  see  Seligman,  Essays 
in  Taxation,  ch.  IX. 


MUNICIPAL  OWNERSHIP  155 

be  undertaken  by  the  government  itself  and  financed  by 
means  of  charges  imposed  upon  consumers  in  proportion 
to  benefit. 

In  recent  years  the  term  "public  utility"  has  received 
statutory  or  constitutional  definition  in  a  number  of 
states.  These  legislative  definitions  are  invariably  for- 
mulated in  line  with  the  popular  concept  of  the  term  as 
indicated.  For  example,  the  public  utilities  law  of  Wis- 
consin defines  a  public  utility  as  "every  corporation, 
company,  individual,  association  of  individuals  .  .  . 
and  every  town,  village  or  city  that  now  or  hereafter 
may  own,  operate,  manage  or  control  any  plant  or 
equipment  .  .  .for  the  conveyance  of  telephone 
messages  or  for  the  production,  transmission,  delivery  or 
furnishing  of  heat,  light,  water  or  power  either  directly 
or  indirectly  to  or  for  the  public."^  To  declare  that  a 
utility  is  a  person  is,  perhaps,  an  interesting  example  of 
legislative  license  in  the  matter  of  the  English  language ; 
but  this  law  certainly  leaves  no  doubt  as  to  kind  of 
business  which  the  legislature  had  in  mind.  A  recent 
amendment  to  the  constitution  of  California  refers  to 
public  utilities  as  ''public  works"  for  supplying  the 
inhabitants  of  cities  with  "light,  water,  power,  heat, 
transportation,  telephone  service  or  other  means  of 
communication."^  Here  again  there  is  no  uncer- 
tainty as  to  the  character  of  the  functions  intended. 
Even  in  Oklahoma  the  statutory  definition  of  the 
term  "public  utility"  is  far  more  nearly  in  line  with 
the  commonly  accepted  meaning  of  that  term  than  the 
definition  that  has  been  given  by  the  courts  of  that 

•  Laws  of  Wisconsin,  1909,  ch.  499,  sec.  i. 
'  Art.  XI,  sec.  19,  adopted  in  191 1. 


156  CITY  PROGRESS  AND  THE  LAW 

state.  ^  Indeed,  it  seems  safe  to  conclude  that,  gener- 
ally speaking,  the  legal  conception  of  what  is  and  what 
is  not  a  public  utility  is  fairly  in  accord  with  the  popu- 
lar conception  of  what  the  term  connotes. 

The  ^^ municipal  purpose^*  bogy 

We  have  already  had  occasion  to  refer  to  those  gen- 
eral rules  of  our  law  which  assert  that  taxes  may  not  be 
imposed  and  the  power  of  eminent  domain  may  not  be 
exercised  for  other  than  a  public  purpose.^  A  number 
of  our  state  constitutions  also  expressly  declare  or 
clearly  imply  that  cities  may  be  granted  the  power  to 
levy  taxes  only  for  "municipal"  or  ''corporate"  pur- 
poses. ^^  While  the  distinction  between  "public  purpose" 
and  "municipal  purpose"  has  apparently  not  been  much 
discussed  by  the  courts,  it  is  manifest  that  the  former, 
although  more  comprehensive,  is  completely  inclusive  of 
the  latter.  Every  municipal  purpose  is  a  local  public 
purpose;  but  there  are  probably  public  purposes  which 
are  not  regarded  as  local  and,  therefore,  are  not  munici- 
pal.ii 

There  are  a  considerable  number  of  cases  in  the  books 
involving  the  question  of  whether  taxes  imposed  for  the 

*  Laws  of  Oklahoma,  1907.  P-  190,  sec.  3. 

9  Supra,  ch.  V. 

*°  Index  Digest  of  State  Constitutions,  p.  1395  ff. 

^^  At  the  same  time  it  should  be  noted  that  this  contention  has  seldom 
been  raised.  For  example,  education  is  commonly  regarded  as  of  state 
rather  than  of  local  concern;  but  it  has  probably  never  been  urged  that  a 
city  may  not  be  authorized  or  compelled  to  impose  taxes  for  this  purpose 
on  the  ground  that  it  is  not  a  municipal  purpose  within  the  meaning  of  the 
constitutional  clauses  here  under  consideration.  On  this  point  see  McBain, 
Due  Process  of  Law  and  the  Power  of  the  Legislature  to  Compel  a  Municipal 
Corporation  to  Levy  a  Tax  or  Incur  a  Debt  for  a  Strictly  Local  Purpose,  in  14 
Columbia  Law  Review,  407-409. 


MUNICIPAL  OWNERSHIP  157 

acquisition  of  this  or  that  pubHc  utility  are  or  are  not 
taxes  levied  for  a  municipal  purpose.  It  seems  unnec- 
essary, however,  to  review  these  cases.  As  might  be  ex- 
pected, the  courts  have  almost  universally  held  that 
the  ownership  of  a  public  utility  by  a  city  is  a  municipal 
purpose. ^2  Indeed,  it  is  difficult  to  comprehend  how  the 
contrary  contention  could  be  seriously  put  forward  in 
modern  times. 

Municipal  ownership  under  constitutional  sanction 

There  is  a  common  impression  abroad  in  the  United 
States  that  the  powers  which  cities  enjoy  to  own  and 
operate  public  utilities  are  very  narrowly  limited  by  law. 
While  there  are,  of  course,  considerable  variations  in  re- 
spect to  this  matter,  it  is  nevertheless  true  that,  so  far 
as  naked  legal  power  is  concerned,  many  cities  enjoy  a 
wide  margin  of  unexercised  competence  in  this  regard. 
In  such  cases  the  failure  of  the  city  to  own  and  operate 
is  due  either  to  an  absence  of  local  sentiment  in  favor  of 
publit  ownership,  which  in  turn  may  result  from  one  or 
more  of  several  causes,  or  to  the  existence  of  legal  and 
practical  restrictions  and  complications  which,  even  if 
they  are  not  insuperable,  as  they  sometimes  are,  are  yet 
sufficiently  formidable  to  render  the  prospect  of  public 
ownership  unattractive  and  discouraging. 

As  far  back  as  1857  there  was  incorporated  in  the  con- 
stitution of  Iowa  a  provision  limiting  in  proportion  to 
the  assessed  valuation  of  taxable  property  within  any 
city  the  amount  of  indebtedness  which  such  city  might 
incur.     Somewhat  similar  provisions  were  thereafter 

^2  For  a  discussion  of  some  of  the  cases  in  point  see  Pond,  Public  Utilities, 
ch.  IV.  and  passim. 


158  CITY  PROGRESS  AND  THE  LAW 

incorporated  into  a  large  number  of  state  constitutions.  ^^ 
Many  of  these  provisions  recognized,  however,  that  a 
distinction  should  be  drawn  between  indebtedness  for 
general  purposes  and  indebtedness  incurred  in  connec- 
tion with  the  construction  or  acquisition  of  public  utili- 
ties. This  distinction  is  based  upon  the  difference,  al- 
ready referred  to,  in  the  manner  in  which  public  utili- 
ties are  commonly  financed.  So  long  as  the  general 
property  tax  constitutes  the  principal  source  of  munici- 
pal revenue  for  general  purposes,  there  exists  an  obvious 
relation  between  the  problem  of  municipal  indebtedness 
and  the  taxable  value  of  private  property  within  the 
city.  But  as  a  rule,  municipally  owned  utilities  are  at 
least  approximately  self-sustaining.  If  it  be  assumed 
that  the  fees  charged  by  the  city  for  such  utility  ser- 
vices are  sufficient  in  amount  not  only  to  pay  for  main- 
tenance and  operation  but  also  to  liquidate  indebted- 
ness incurred  for  outlay,  there  is  no  relation  whatever 
between  utility  debts  and  private  property  values. 
Upon  this  assumption — ^which,  it  may  be  remarked,  has 
not  always  been  fully  justified  by  experience — many 
constitutions  exempt  from  the  debt  limits  which  they 
impose  upon  cities  the  amount  of  indebtedness  incurred 
either  for  one  or  more  specified  utilities  or  for  public 
utilities  and  revenue  producing  enterprises  generally.  ^^ 
Constitutional  provisions  of  this  kind  do  not  in  point 
of  fact  actually  grant  to  cities  any  powers  of  municipal 
ownership  of  utilities.  They  merely  regulate  matters 
pertaining  to  indebtedness  in  case  the  legislature  should 

^'  McBain,    The  Law  and  the  Practice  of  Municipal  Home  Rule,   pp. 

S3.  54. 

^'^  Index  Digest  of  Slate  Constitutions,  pp.  126-136.     In  some  instances 
the  debt  limit  is  simply  increased  for  such  purposes. 


MUNICIPAL  OWNERSHIP  159 

authorize  such  ownership.  Within  recent  years,  how- 
ever, there  has  been  a  growing  tendency  to  confer  upon 
cities  by  constitutional  provision  broad  grants  of  power 
to  own  and  operate  pubHc  utiHties.  Thus  by  an  amend- 
ment to  the  Colorado  constitution  adopted  in  1902,  the 
city  of  Denver  was  authorized  to  own  and  operate 
* 'waterworks,  light  plants,  power  plants,  transportation 
systems,  heating  plants,  and  any  other  public  utilities.''^^ 
So  under  the  Michigan  constitution  of  1908  every  city 
and  village  is  directly  empowered  to  "acquire,  own  and 
operate,  either  within  or  without  its  corporate  limits, 
public  utilities  for  supplying  water,  light,  heat,  power 
and  transportation  to  the  municipality  and  the  inhabi- 
tants thereof. ' '  ^^  This  apparently  generous  grant  is,  how- 
ever, stripped  of  most  of  its  possibilities  by  the  proviso 
that  all  mortgage  bonds  issued  beyond  the  general  limit 
of  the  city's  bonded  indebtedness  shall  be  ''secured  only 
upon  the  property  and  revenues"  of  the  public  utility  in 
question. ^^  A  similar  proviso  cripples  the  force  of  the 
Ohio  constitutional  amendment  of  191 2  by  which  every 
municipality  of  the  state  is  authorized  to  "acquire,  con- 
struct, own,  lease  and  operate,  within  or  without  its 
corporate  limits,  any  public  utility  the  product  or 
service  of  which  is  or  is  to  be  supplied  to  the  munici- 
pality or  its  inhabitants. "^8 

As  a  matter  of  reason  it  may  well  be  argued  that  if 
the  city  is  permitted  to  incur  indebtedness  for  utility 

«  Art.  XX.  sec.  i. 

"  Art.  VIII,  sec.  23. 

17  Art.  VIII,  sec,  24.  See  Attorney  General  ex  rel.  Hudson  v.  Common 
Council  of  Detroit,  164  Mich.  369  (191 1);  Attorney  General  ex  rel.  Barbour 
V.  Lindsay,  178  Mich.  524  (1914). 

"Art.  XVIII.  sees.  4.  12. 


l6o  CITY  PROGRESS  AND  THE  LAW 

purposes  beyond  the  limit  that  is  fixed  in  proportion  to 
taxable  values,  such  excess  indebtedness  should  be  se- 
cured not  against  the  general  credit  of  the  city,  which 
rests  upon  the  solid  foundation  of  taxable  values,  but 
only  upon  the  property  and  revenues  of  the  utility  for 
which  the  indebtedness  is  assumed.  As  a  matter  of 
practice,  however,  it  will  probably  be  very  nearly  im- 
possible for  any  city  to  float  an  issue  of  bonds  on  this 
basis,  except,  perhaps,  at  very  high  interest  rates.  The 
reputation  of  cities  for  businesslike  management  is  not 
such  as  to  commend  itself  to  investors  as  such.  Indeed, 
the  ready  marketableness  of  municipal  bonds  at  com- 
paratively low  rates  of  interest  results  almost  wholly 
from  the  fact  that  enormous  values  may  be  tapped  for 
the  liquidation  of  these  bonds  by  the  exercise  of  the 
power  of  taxation. 

Under  the  Oklahoma  constitution  of  1908,  which  was 
closely  copied  in  this  respect  by  the  Arizona  constitution 
of  1 91 2,  cities  are  allowed  to  become  indebted  ''for  the 
purchasing  or  constructing  of  public  utilities"  with  the 
approval  of  a  majority  vote  of  the  property  tax-paying 
voters.  Debts  for  this  purpose  are  not  included  within 
the  general  municipal  debt  limit  established  by  the 
constitution.  1^  In  California,  by  an  amendment 
adopted  in  191 1,  every  municipal  corporation  is  em- 
powered to  "establish  and  operate  public  works  for  sup- 
plying its  inhabitants  with  light,  water,  power,  heat, 
transportation,  telephone  service  or  other  means  of 
communication.  "20  This  power  was  expressly  granted 
in  spite  of  the  fact  that  most  of  the  cities  of  California 

"  Art.  X,  sees.  26,  27. 
20  Art.  XI,  sec.  19. 


MUNICIPAL  OWNERSHIP  l6i 

have  exercised  the  constitutional  power  of  framing  and 
adopting  their  own  charters,  and  in  spite  of  the  fact 
that  the  state  supreme  court  had  previously  held  that 
this  power  of  home  rule  included  the  power  to  own  and 
operate* 'any such  necessary  public  utility  as  is  generally 
owned  and  operated  in  a  city  by  what  is  ordinarily 
known  as  a  public  service  corporation,  such  as  water- 
works, gas  or  electric  light  works,  street  railways,  etc."^^ 
In  this  state  no  absolute  or  proportionate  debt  limit  is 
imposed  upon  cities  by  the  constitution;  there  is  in 
lieu  thereof  a  requirement  that  there  shall  be  a  referen- 
dum upon  every  proposition  to  incur  a  debt  in  excess  of 
annual  income.^^ 

Every  one  of  these  states  which  have  conferred  powers 
of  municipal  ownership  by  direct  constitutional  provi- 
sion have  also  conferred  upon  cities  general  home  rule 
powers.  In  framing  and  adopting  its  own  charter,  the 
city  may  make  such  provision  as  it  chooses  for  the  own- 
ership and  management  of  public  utilities.  Under  other 
circumstances  a  power  of  ownership  conferred  directly 
by  the  constitution  might  in  practice  be  of  little  avail; 
for  it  would  be  difficult  to  determine,  in  the  absence  of 
charter  stipulation,  what  specific  local  authority  could 
act  for  the  city  in  the  matter  of  acquiring,  constructing, 
and  operating  any  particular  utility. 

Municipal  ownership  under  statutory  sanction 

It  is  simply  a  fact  that  nearly  all  the  public  utilities 
which  are  municipally  owned  in  the  United  States  have 
been  acquired  under  authorization  by  the  legislature, 

2^  Piatt  V.  San  Francisco,  158  Cal.  74  (1910). 
•2  Art.  XI,  sec.  18. 


I62  CITY  PROGRESS  AND  THE  LAW 

rather  than  by  the  state  constitution.  As  we  have  had 
occasion  to  note,  moreover,  the  courts  have,  on  the  whole, 
been  more  Uberal  than  otherwise  in  their  construction  of 
the  charter  powers  of  cities  in  this  respect.  More  than 
one  city  has  been  permitted  to  own  and  operate  a  public 
utility  under  an  implied — and  sometimes  only  a  vaguely 
implied — competence. ^^  Because  of  wide  variations  and 
the  infinity  of  details,  it  is  impossible  to  describe  in  gen- 
eral terms  the  present  status  of  the  charters  and  statutes 
governing  the  powers  of  cities  in  this  respect.  A  few 
points  of  interest  may,  however,  be  noted. 

It  is  easy  enough  to  point  to  numerous  statutes  and 
constitutional  provisions  which  confer  upon  cities  more 
or  less  broad  powers  to  own  and  operate  public  utilities; 
but  the  actual  utility  situation  in  most  sizeable  cities  is 
highly  complicated.  It  is  not  as  if  the  streets  of  the 
city,  which  are  indispensably  bound  up  in  the  utility 
problem,  were  virgin  soil.  On  the  contrary,  they  are 
already  largely  occupied;  and  the  opportunities  of  the 
city  to  enter  the  field  as  an  owner  and  operator  depend 
largely,  if  not  entirely,  upon  the  terms  and  conditions  of 
this  existing  occupancy.  Where  there  is  no  lack  of 
statutory  or  constitutional  authorization,  and  where  the 
city  desires  to  embark  upon  public  ownership,  what, 
then,  are  the  more  usual  opportunities  that  are  avail- 
able? 

There  is,  in  the  first  place,  an  opportunity  to  occupy 
such  parts  of  the  utility  field  as  are  not  already  occupied 
by  private  companies,  not  as  a  competitor  of  such  com- 
panies but  as  a  supplementer.  A  street  railway  com- 
pany is  usually  limited  to  a  specified  traction  route  and 

»  Supra,  44-48. 


MUNICIPAL  OWNERSHIP  163 

a  water  company  or  gas  company  may  be  confined  to 
territorial  limits  narrower  than  those  of  the  city  itself. 
In  such  cases  the  city  may  embark  upon  municipal 
ownership  and  operation  by  preempting  the  unoccupied 
field.  It  is  obvious,  however,  that  this  merely  opens  to 
the  city  the  least  attractive  and  potentially  the  least 
profitable  part  of  the  field.  Municipal  ownership  in  the 
outlying  and  sparsely  settled  districts  of  a  city  might  be 
justified  as  a  policy  adopted  in  the  interest  of  affecting 
the  housing  situation  by  the  development  of  unim- 
proved sections;  but  it  ought  to  be  recognized  that,  if 
undertaken  for  such  a  purpose,  immediate  financial  suc- 
cess would  be  highly  improbable.  The  principal  diffi- 
culty, aside  from  that  of  finance,  is  that  utilities  (and 
especially  transportation,  which  would  be  of  prime  im- 
portance in  such  a  scheme)  cannot  always  be  segregated 
into  district  units.  Consolidation  of  connecting  units, 
as  well  as  of  competing  units,  has  been  one  of  the  prin- 
cipal characteristics  of  utility  development  in  this  coun- 
try; and  the  reasons  for  the  consolidation  of  connecting 
units  are  so  obvious  as  to  require  no  discussion.  On  the 
whole,  therefore,  it  can  scarcely  be  said  that  the  oppor- 
tunity for  noncompetitive  municipal  ownership  in  areas 
unoccupied  by  utility  companies  is  either  very  large  or 
very  tempting. 

Not  infrequently,  however,  the  oportunity  is  open  to 
the  city  to  enter  into  active  competition  with  existing 
utility  companies.  Of  course,  there  are  many  instances 
in  which  private  utility  corporations  have  been  granted 
exclusive  franchise  rights.  In  such  instances  the  city  is 
powerless  to  invade  these  rights  under  a  subsequently 
conferred  power  of  ownership.    The  obligation  of  exist- 


I64  CITY  PROGRESS  AND  THE  LAW 

ing  contracts  cannot  be  impaired.  If  the  exclusive  fran- 
chise is  of  limited  duration,  the  city  can  only  bide  its 
termination.  If  the  franchise  is  in  perpetuity,  the  city 
is,  so  far  as  the  law  is  concerned,  forever  debarred  from 
encroachment,  except,  perhaps,  by  the  process  of  con- 
demnation.24  There  are  in  existence  in  American  cities 
many  exclusive  franchises  and  some  of  them  are  both 
irrevocable  and  unlimited  as  to  duration. 

The  courts,  however,  prompted  by  the  lead  of  the 
United  States  Supreme  Court  in  a  famous  case  ^^  de- 
cided in  1837  have  adopted  and  applied  a  rule  of  very 
strict  construction  in  the  matter  of  exclusive  franchises. 
A  person  (or  corporation)  must  show  that  the  exclu- 
siveness  of  his  franchise  was  granted  in  express  and  un- 
mistakable terms;  nothing  will  be  taken  for  granted  by 
general  implication.  Moreover,  as  has  been  noted, ^^  the 
city  itself  will  not  be  held  to  have  the  power  to  grant  an 
exclusive  franchise  unless  such  power  has  been  ex- 
pressly delegated.  ' 'Such  power,"  says  the  highest  court 
of  the  land,  "must  be  given  in  language  explicit  and  ex- 
press, or  necessarily  implied  from  other  powers."  There 
are  obvious  reasons  which,  in  the  absence  of  the  clearest 
intention,  ''insistently  forbid  that  the  future  should  be 
committed  and  bound  by  the  conditions  of  the  present 
time,  and  functions  delegated  for  public  purposes  be 
paralyzed  in  their  exercise  by  the  existence  of  exclusive 
privileges.  "27 

More  especially  is  this  true  where  the  city  itself  seeks 
to  enter  into  competition  with  a  private  corporation 

^^  Infra,  170. 

25  Charles  River  Bridge  v.  Warren  Bridge,  11  Peters  420  (1837). 

2^  Supra,  42. 

27  Detroit  Citizens'  Street  R.  Co.  v.  Detroit  Ry.,  171  U.  S.  48  (1898). 


MUNICIPAL  OWNERSHIP  165 

which,  without  being  able  to  show  express  grant  of  au- 
thority, puts  forward  the  contention  that  it  enjoys  an 
exclusive  franchise  right.  The  Supreme  Court  of  the 
United  States  has  expressed  itself  unequivocally  upon 
this  point.  For  example,  the  city  of  Knoxville,  Tennes- 
see, in  granting  a  water  franchise  to  a  private  corpor- 
ation, had  expressly  agreed  "not  to  grant  to  any  other 
person  or  corporation,  any  contract  or  privilege  to  fur- 
nish water  to  the  city  of  Knoxville,  or  the  privilege  of 
erecting  upon  the  public  streets,  lanes,  or  alleys  or  other 
public  grounds  for  the  purpose  of  furnishing  said  city 
or  the  inhabitants  thereof  with  water  for  the  full  period 
of  thirty  years  from  the  first  day  of  August,  A.D.  1883." 
Before  the  expiration  of  the  thirty  years,  however,  the 
city  decided  to  construct  its  own  waterworks.  Strictly 
construing  the  contract  into  which  the  city  had  entered 
with  the  waterworks  company,  the  Supreme  Court  held 
that  *'the  stipulation  in  the  agreement  that  the  city 
would  not,  at  any  time  during  the  thirty  years  com- 
mencing August  I,  1883,  grant  to  any  person  or  corpora- 
tion the  same  privileges  it  had  given  to  the  water  com- 
pany, was  by  no  means  an  agreement  that  it  would 
never  during  that  period  construct  and  maintain  water- 
works of  its  own. "28  Although  this  might  "bring  hard- 
ship and  loss  to  the  water  company  and  to  those  having 
an  interest  in  its  property  and  bonds,"  the  view  was  ex- 
pressed that  "the  court  should  adhere  firmly  to  the  salu- 
tary doctrine  underlying  the  whole  law  of  municipal 
corporations  and  the  doctrines  of  the  adjudicated  cases, 
that  grants  of  special  privileges  affecting  the  general  in- 

**  Knoxville  Water  Company  v.  Knoxville,  200  U.  S.  22  (1905).    Four 
justices  dissented. 


i66  CITY  PROGRESS  AND  THE  LAW 

terests  are  to  be  liberally  construed  in  favor  of  the  pub- 
lic, and  that  no  public  body,  charged  with  public  duties 
be  held  upon  mere  implication  or  presumption  to  have 
divested  itself  of  its  powers." 

In  a  recent  case^^  involving  an  attempt  on  the  part 
of  a  city  to  establish  a  waterworks  in  competition  with 
a  plant  owned  and  operated  by  a  private  company,  it 
was  pointed  out  that  the  city  would  be  called  upon  to 
regulate  the  rates  that  might  be  charged  by  the  private 
company  and  at  the  same  time  endeavor  to  make  a 
success  of  the  city  works.  Moreover,  the  private  com- 
pany was  * 'called  on  to  pay  taxes  to  help  its  rival  suc- 
ceed.'* In  answer  to  these  points,  the  Supreme  Court 
said: 

It  is  impossible  not  to  feel  the  force  of  the  plaintiff's  argument  as 
a  reason  for  interpreting  the  constitution  [of  California]  so  as  to 
avoid  the  result,  if  it  might  be,  but  it  comes  too  late.  There  is  no 
pretense  that  there  is  any  express  promise  to  private  adventurers 
that  they  shall  not  encounter  subsequent  municipal  competition. 
We  do  not  find  any  language  that  even  encourages  that  hope,  and 
the  principles  established  in  this  class  of  cases  forbid  us  to  resort  to 
the  fiction  that  a  promise  is  implied. 

The  constitutional  possibility  of  such  a  ruinous  competition  is 
recognized  in  the  cases,  and  is  held  not  sufficient  to  justify  the  im- 
plication of  a  contract.^o  .  .  So  strictly  are  private  persons  con- 
fined to  the  letter  of  their  express  grant  that  a  contract  by  a  city  not 
to  grant  to  any  person  or  corporation  the  same  privileges  that  it  had 
given  to  the  plaintiff  was  held  not  to  preclude  the  city  itself  from 
building  waterworks  of  its  own  3i .  .  .As  there  is  no  contract  the 
plaintiff  stands  legally  in  the  same  position, as  if  the  constitution 

2»  Madera  Waterworks  v.  City  of  Madera,  228  U.  S.  454  (1913). 

^  Citing  Hamilton  Gas  Light  and  Coke  Co.  v.  Hamilton,  146  U.  S.  258 
(1892);  Joplin  V.  Southwest  Missouri  Light  Co.,  191  U.  S.  150  (1903); 
Helena  Waterworks  Co.  v.  Helena,  195  U.  S.  383  (1904). 

31  Citing  Knoxville  Water  Company  v.  Kjioxville,  200  U.  S.  22  (i905)t 
and  Vicksburg  v.  Vicksburg  Waterworks  Company,  202  U.  S.  453  (1905)- 


MUNICIPAL  OWNERSHIP  167 

had  given  express  warning  of  what  the  city  might  do.    It  is  left  to 
depend  upon  the  sense  of  justice  that  the  city  may  show. 

In  the  light  of  such  opinions  as  this,  it  may  be  taken 
as  settled  that  the  field  of  competition  lies  open  to  the 
city  unless  it  has  been  bartered  away  in  the  most  spe- 
cific terms.  Occasionally,  as  in  the  case  of  the  New- 
York  subways,  which  are  municipally  built  though  pri- 
vately operated,  a  city  actually  enters  into  competition 
with  existing  utility  companies.^^  j^  jg  ^  fact,  however, 
that  not  many  cities  have  done  this.  They  have  far 
more  usually,  where  they  enjoyed  the  power  to  do  so, 
used  the  threat  of  public  competition  to  secure  adequate 
compliance  with  the  terms  of  franchise  agreements  or 
to  secure  addenda  concessions  to  such  agreements  in 
the  interest  of  the  public.  To  these  ends  potential  com- 
petition by  the  city  itself  has  been  a  powerful  weapon 
in  the  hands  of  municipal  authorities — a  weapon  which 
has,  of  course,  been  capable  of  improper  as  well  as  of 
proper  uses.  * 

In  this  connection  a  few  words  in  respect  to  the 
general  subject  of  competition  in  public  utility  services 
may  not  be  inappropriate.  Time  was  when,  in  the 
effort  to  secure  adequate  rates  and  service  from  utility 
corporations,  chief  reliance  was  placed  upon  the  opera- 
tion of  the  usual  economic  laws  of  competition.  For 
a  number  of  reasons,  however,  competition  for  this  pur- 
pose proved  largely  a  failure.  ^^    It  failed  even  in  the 

^2  The  Rapid  Transit  Acts,  by  which  the  power  to  construct  subways 
was  granted  to  the  city,  were  contested  in  Sun  Printing  and  Publishing  As- 
sociation V.  Mayor  etc.  of  New  York,  152  N.  Y.  257  (1897),  chiefly  on  the 
ground  that  money  spent  for  this  purpose  was  not  for  a  "city  purpose." 
Supra,  156. 

"  Wilcox,  Municipal  Franchises,  I,  pp.  123-126  and  passim. 


i68  CITY  PROGRESS  AND  THE  LAW 

case  of  those  utilities,  such  as  electric  light,  in  which 
the  physical  possibilities  of  competition  were  largest. 
It  is  true  that  some  elements  of  competition  still  sur- 
vive in  the  matter  of  municipal  utilities;  but,  generally 
speaking,  monopoly  under  municipal  ownership  or 
monopoly  under  private  ownership  subject  to  public 
regulation  have  come  to  be  recognized  as  more  or  less 
inevitable  if  not  actually  indispensable. 

Where  conditions  exist  that  call  loudly  for  service  in 
addition  to  that  which  is  being  or  Ccin  be  furnished  by 
existing  utility  companies,  cities  have  occasionally  en- 
tered the  field  of  competition  with  no  intention  of  de- 
stroying the  business  of  these  companies  or  even  of 
compelling  them  to  supply  better  service  or  to  reduce 
rates.  This  was  notably  true  in  the  case  of  the  New 
York  subways.  More  usually,  however,  where  a  city 
has  the  statutory  power  to  enter  into  competition  with 
a  privately  owned  public  utility  and  where  this  power  is 
exercised,  the  enterprise  is  undertaken  for  quite  dif- 
ferent purposes.  It  is  commonly  an  enterprise  of  last 
resort.  The  city,  having  the  resource  of  general  taxa- 
tion that  is  unavailable  to  the  private  corporation,  may 
operate  indefinitely  at  a  loss.  Its  competitors,  there- 
fore, are  very  unevenly  matched  against  it.  The  odds 
are  so  greatly  in  favor  of  the  city  that,  having  once 
launched  its  enterprise,  there  can  be  no  doubt  of  the 
result.  Ultimately  the  privately  owned  utility  must 
either  capitulate  at  the  city's  terms  or  suffer  itself  to 
be  utterly  annihilated  with  a  show  of  heroism  that  is 
not  usually  associated  with  transactions  involving  con- 
siderations of  a  wholly  material  character.  In  other 
words,  when  the  city  enters  it  enters  to  conquer  and  not 


MUNICIPAL  OWNERSHIP  169 

to  play  the  r61e  either  of  a  supplementer  or  of  a  mere 
economic  adjuster.  In  the  case  of  utilities  that  use  the 
subsurfaces  or  supersurfaces  of  streets  this  is  manifest. 
With  ordinary  street  railways,  however,  with  which  we 
in  the  United  States  have  had  little  experience  in  the 
matter  of  public  as  opposed  to  private  competition,  the 
situation  is  somewhat  modified  by  physical  circum- 
stances. Even  where  the  city  is  not  legally  barred  from 
competition  by  reason  of  wholly  exclusive  grants  to  pri- 
vate corporations  in  designated  streets,  it  may  find  itself 
greatly  handicapped  by  the  fact  that  the  most  available 
streets  are  already  occupied  by  tracks  while  their  ca- 
pacity for  carrying  tracks  is  manifestly  limited. 

The  competence  of  this  or  that  city  to  enter  the  field 
of  competition  with  private  utility  corporations  has  for 
the  most  part  been  the  result  of  inadvertence  rather 
than  of  design.  The  city  has  usually  stumbled  upon  its 
competence  in  the  course  of  a  struggle  toward  better 
utility  conditions.  The  right  of  the  city  to  compete  has 
rarely,  if  ever,  been  expressly  recognized  in  a  franchise 
agreement.  It  has  found  its  origin  chiefly  in  the  ab- 
sence of  express  stipulations  to  the  contrary.  In  re- 
cently granted  franchises  of  the  more  approved  form,  the 
conflict  between  the  right  of  the  city  to  be  served  ade- 
quately and  charged  reasonably  and  of  the  utility  cor- 
poration to  earn  an  income  regardless  of  public  con- 
siderations has  been  more  squarely  met.  Specific  pro- 
vision has  been  made  in  respect  to  the  rights  of  the  city 
to  take  over  the  utility  in  question  at  any  time  or  at 
specified  dates  or  at  the  termination  of  the  franchise. 
Provisions  of  this  kind  have,  of  course,  varied ;  but  ex- 
cept in  cases  in  which  the  city  has  made  extraordinary 


I70  CITY  PROGRESS  AND  THE  LAW 

financial  concessions  or  those  in  which  a  scheme  of 
amortization  has  been  provied,  they  have  usually  em- 
bodied the  requirement  that  the  city  shall  pay  for  the 
property  of  the  company  at  an  appraised  valuation,  in 
which,  however,  the  value  of  the  franchise  as  such  shall 
not  be  included.  Under  such  agreements  municipal  com- 
petition is  effectually  excluded.  It  should  be  remarked, 
moreover,  that  the  efficacy  of  such  agreements  depends 
upon  whether  the  utility  covered  by  the  franchise  can 
be  successfully  operated  as  an  independent  unit.  If  the 
franchise  is  only  a  link  in  a  chain  of  interdependent 
franchises,  it  is  obvious  that  the  reservation  of  a  right  to 
take  over  this  link  is  at  best  only  a  half-way  measure. 

Acquisition  by  eminent  domain 

The  power  of  eminent  domain  is  sometimes  conferred 
upon  cities  only  for  a  specified  list  of  purposes.  Often, 
however,  it  is  conferred  generally  for  any  public  pur- 
pose. Even  in  private  hands  a  public  utility  is  regarded 
as  a  business  operated  for  a  public  purpose;  and  the 
power  of  eminent  domain  is  often  granted  to  the  private 
owner.  Is  it  possible,  then,  for  a  city  which  has  the 
constitutional  or  statutory  power  to  own  utilities  to 
secure  possession  of  privately  owned  utilities  by  con- 
demnation proceedings  under  the  power  of  eminent  do- 
main? The  law  upon  this  subject  is  firmly  settled  in 
favor  of  the  competence  of  the  city.  Thus  the  New 
York  court  of  appeals,  in  a  case  involving  the  condem- 
nation of  a  waterworks  by  the  city  of  Brooklyn,  sus- 
tained the  validity  of  such  a  proceeding  by  the  follow- 
ing course  of  reasoning:  ^^ 

"  In  re  City  of  Brooklyn,  143  N.  Y.,  596  (1894). 


MUNICIPAL  OWNERSHIP  171 

While  the  purpose  of  the  waterworks  company  was  public  in  its 
nature,  it  cannot  be  said  to  be  strictly  identical  with  the  municipal 
purpose.  A  municipal  corporation  is  a  public  and  governmental 
agency.  It  holds  property  for  the  general  benefit,  with  a  larger  scope 
of  use.  When  acquired  by  the  municipality  of  Brooklyn,  the  appel- 
lant's property  would  become  a  part  of  a  general  system,  under  a 
single  management,  and  conducted  essentially  as  a  public  work.  If, 
in  order  the  better  to  serve  the  public  use,  the  appropriation  of  private 
property  is  necessary,  even  though  it  be  already  devoted  to  a  similar 
use,  the  right  to  make  it  is  incident  to  the  legislative  power,  and  it  is 
necessary  for  the  general  good  that  the  right  be  conceded.  All  prop- 
erty within  the  state  is  subject  to  the  right  of  the  legislature  to  appro- 
priate it  for  necessary  and  reasonable  public  use,  upon  a  just  compensa- 
tion being  provided  to  be  made  therefor,  and  there  can  be  no  distinc- 
tion in  favor  of  corporations  whose  franchisesand  operations  impart  to 
them  a  quasi-public  character.  We  think  it  very  apparent  that  the 
public  use  to  which  the  appellant's  property  i  s  to  be  devoted  by  the  pro- 
visions of  the  act  does  differ,  and  that  it  is  of  a  higher  and  wider  scope. 

This  view  was  sustained  by  the  United  States  Supreme 
Court  when  the  case  went  forward  upon  a  writ  of  error.^s 
To  the  argument  that  the  superiority  of  the  public  pur- 
pose of  the  city  over  against  that  of  the  private  corpora- 
tion could  be  sustained  only  if  the  city  furnished  water 
without  charge  to  the  inhabitants,  the  court  replied : 

That  the  supply  of  water  to  a  city  is  a  public  purpose  cannot  be 
doubted,  and  hence  the  condemnation  of  a  water  supply  system 
must  be  recognized  as  within  the  unquestioned  limits  of  the  power  of 
eminent  domain.  .  .  The  state,  which,  in  the  first  place,  has  the 
power  to  construct  a  water  supply  system  and  charge  individuals  for 
the  use  of  water,  may  condemn  a  system  already  constructed,  and 
continue  to  make  such  charge.  This  is  not  turning  property  from 
one  private  corporation  to  another,  but  taking  property  from  a 
private  corporation  and  vesting  the  title  in  some  municipal  corpora- 
tion for  the  public  use.  It  is  not  essential  to  a  public  use  that  it  be 
absolutely  free  and  without  any  charge  to  any  one. 

"  Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  685  (1897). 


172  CITY  PROGRESS  AND  THE  LAW 

In  spite  of  the  firm  establishment  of  the  law  upon  this 
point  it  is  nevertheless  a  fact  that  few  cities  have  ac- 
quired utilities  by  the  process  of  condemnation.  This 
has  been  due  in  part  no  doubt  to  the  novelty  of  such  an 
enterprise  as  well  as  to  uncertainty  as  to  whether  the 
power  of  eminent  domain,  when  granted  for  general 
public  purposes,  could  be  used  for  this  specific  purpose,^^ 
although  it  is  difficult  to  see  why  it  might  not  be  so 
used  under  such  a  grant.  Further  than  this,  it  is  a  fact 
of  common  knowledge  that  the  city  pays  dearly  indeed 
even  for  the  real  property  which  it  acquires  by  condem- 
nation proceedings.  When  it  is  considered  that  the  ac- 
quirement of  a  public  utility  by  this  means  involves  the 
condemnation  not  only  of  real  and  personal  property 
but  also  of  a  business,  including  the  easily  swollen  ele- 
ments of  franchise  value  and  other  intangibles,^^  it  is 
needless  to  say  that  the  average  American  city,  con- 
sulting the  book  of  experience,  would  hesitate  before  it 
plunged  into  a  project  from  which  it  might  find  diffi- 
culty in  drawing  back. 

Within  comparatively  recent  years  the  body  of  case 
law  dealing  with  the  subject  of  public  utilities  has,  like 
the  body  of  statute  law,  increased  to  enormous  volume. 
Many  of  the  rules  that  have  been  laid  down  with  refer- 
ence to  privately  owned  utilities  have  been  applied  with 
little  discrimination  to  municipally  owned  utilities.  To 
discuss  all  of  the  important  rules  relating  to  municipal 

*•  In  the  Brooklyn  case  the  power  was  conferred  by  statute  for  this 
specific  proceeding. 

"  It  is  true,  of  course,  that  intangibles  are  sometimes  allowed  even  in 
the  ordinary  condemnation  of  real  property.  See,  for  example.  In  re  Board  of 
Water  Supply  of  New  York,  211  N.  Y.  174  (1914)- 


MUNICIPAL  OWNERSHIP  173 

ownership  would  lead  us  far  into  the  broad  general  field 
of  public  utilities  law.  Such  an  extended  excursion  is 
quite  impossible  here.  So  far  as  control  by  the  state  is 
concerned,  which  is  the  chief  of  the  modem  develop- 
ments in  the  utility  field,  it  is  sufficient  to  say  that  from 
the  strictly  legal  viewpoint  the  city  as  a  utility  owner  is 
decidedly  at  a  disadvantage  when  compared  with  the 
private  owner.  The  competence  of  the  state  to  control 
the  city  in  such  matters  is  referable  not  only  to  the  na- 
ture of  the  business,  but  also  to  the  nature  of  the  owner, 
the  city  being  a  * 'subordinate  political  division  of  the 
state."  Its  right  to  own  is  not  an  inviolable  contract 
with  the  state;  and  although  in  a  few  states  the  city 
and  the  private  owner  have  been  placed  in  the  same 
category  with  respect  to  control  by  a  state  commission, 
the  case  has  probably  never  arisen  in  which  a  city  has  in- 
voked the  guaranty  of  due  process  of  law  to  sustain  its 
rates  or  to  defeat  imposed  requirements  as  to  service. 
It  is  true  that  in  the  vast  majority  of  instances  the 
state  has  not  attempted  to  control  the  city  in  such  mat- 
ters to  any  considerable  extent.  It  has  properly  left  the 
protection  of  the  consuming  public's  interests  to  the  city 
itself.  But  the  point  remains  that  so  far  as  the  law  goes 
the  city  could  probably  find  no  general  constitutional 
protection  against  legislative  compulsion  of  free  service 
or  of  utterly  extravagant  service  should  the  legislature 
attempt  to  exert  its  power  in  this  regard. 

Perhaps  the  principal  legal  advantage  which  the  city 
enjoys  over  against  the  private  owner  of  a  utility  in  the 
matter  of  state  control  lies  in  its  usual  freedom  from 
state  taxation.  Into  this  phase  of  the  law,  however,  we 
cannot  here  enter. 


CHAPTER  VII 

CONTROL  OVER  LIVING  COSTS 

There  are,  of  course,  many  economic  factors  that 
enter  into  the  determination  of  prices,  and  some  of 
these  are  certainly  subject  to  control  or  influence  by 
the  government.  Combinations  in  restraint  of  trade 
and  unfair  methods  of  competition  were  illegal  at  com- 
mon law,  and  in  recent  years  have  been  subjected  to 
statutory  control  under  the  police  power  of  the  states 
and  the  commerce  power  of  Congress.  Frauds  in  the 
use  of  weights  and  measures  or  in  the  misbranding  or 
adulteration  of  commodities  are  likewise  sought  to  be 
prevented.  One  of  the  earliest  functions  of  cities  was 
the  maintenance  of  markets — a  function  which,  in 
theory,  at  least — has  an  effect  upon  prices.  So  also 
the  activity  of  the  government  in  supplying  adequate 
port  and  terminal  facilities  ought  to  affect  that  large 
element  of  price  which  is  chargeable  to  the  cost  of 
transportation. 

But  apart  from  these  and  perhaps  a  few  other  points 
at  which  the  government  may  exercise  an  influence 
upon  price  factors,  there  are  doubtless  only  two  con- 
ceivable methods  of  direct  control.  One  of  these  is  the 
fixing  of  maximum  prices  that  may  be  charged;  the 
other  is  government  ownership  and  operation  of  the 
business  sought  to  be  controlled.  The  principal  ques- 
tion before  us,  therefore,  is:  to  what  extent,  under  our 
constitutional  system,  may  the  government  regulate 


CONTROL  OVER  LIVING  COSTS  175 

business  prices  or  actively  enter  into  the  field  of  busi- 
ness? 

Early  regulation  of  prices 

Those  who  are  unacquainted  with  the  historical  de- 
velopment of  municipal  functions  in  the  United  States 
may  be  surprised  to  learn  that  time  was  when  cities 
exercised  a  far-reaching  measure  of  control  over  what 
we  now  regard  as  private  business  and  especially  over 
the  business  of  purveying  foods.  During  the  colonial 
period,  for  example,  the  only  persons  who  were  per- 
mitted to  carry  on  practically  any  kind  of  business 
within  a  city  were  the  so-called  freemen,  who  were 
admitted  to  their  privileges  by  a  vote  of  the  common 
council  upon  the  payment  of  a  fee.  In  other  words,  it 
was  within  the  undoubted  power  of  the  council,  however 
little  that  power  may  have  been  abused,  to  create  a 
general  legal  monopoly  of  business  within  the  city. 
But  the  early  city  went  further  than  this — it  fixed  the 
exact  maximum  price  at  which  certain  commodities 
might  be  sold.  In  colonial  New  York,  for  instance,  it 
was  customary  to  regulate  with  great  strictness  not  only 
the  quality  and  the  size  of  a  loaf  of  bread,  but  also  the 
price  at  which  it  might  be  offered  for  sale.  Such  regu- 
lations were  varied  from  time  to  time  in  accordance 
with  the  market  price  of  wheat;  and  inspectors  were 
appointed  to  see  that  the  regulations  were  complied 
with.  Incidentally,  it  is  interesting  to  note  that  in 
1 741  the  bakers  of  New  York  City  went  out  on  a 
strike  because  of  the  low  price  that  was  fixed  by  the 
council;  and  the  records  of  the  city  disclose  that  this 
concerted  action  "reduced  some,  notwithstanding  their 


176  CITY  PROGRESS  AND  THE  LAW 

Riches,  to  a  sudden  want  of  Bread."  ^  The  earliest 
instance  of  a  regulation  of  the  price  of  meats  by  the 
common  council  of  New  York  seems  to  have  been  in 
1763.  This  regulation  was  bitterly  opposed  both  by 
the  butchers  and  the  farmers,  but  an  effort  to  get  the 
colonial  assembly  to  nullify  the  city  ordinance  was  de- 
feated. In  the  end,  the  council  modified  its  regulation; 
but  during  the  entire  controversy,  the  competence  of 
the  city  to  enact  such  an  ordinance  seems  not  to  have 
been  questioned.  The  city  also  fixed  the  scale  of  prices 
at  which  wines,  liquors,  and  beers  might  be  sold. 

The  early  policy  of  the  city  of  New  York  in  the  mat- 
ter of  regulating  the  sale  of  comestibles  was  also  closely 
connected  with  its  market  system,  to  which  reference 
will  be  made  a  little  later.  It  is  sufficient  to  note  at  this 
point  that,  with  the  exception  of  bread  and  liquors,  all 
foodstuffs  were  specifically  required  by  ordinance  to 
be  vended  only  at  the  public  markets. 

Development  of  the  law  governing  price  regulation 

In  the  light  of  the  modern  conception  of  municipal 
functions  in  this  regard,  and  more  especially  in  the  light 
of  modern  legal  principles,  it  is  highly  important  to  note 
that  circumstances  have  in  the  course  of  time  brought 
about  changes  of  profound  signification.  It  is  impos- 
sible to  trace  here,  even  in  outline,  the  development  of 
English  and  American  law  governing  the  relation  be- 
tween government  and  business.  It  is  a  long  step  from 
the  medieval  organization  of  industry,  founded  almost 
wholly  upon  the  principle  of  legalized  and  regulated 
monopoly,  to  the  modern  industrial  organization,  based 

*  Journal  of  the  Common  Council,  April  20,  I74i« 


CONTROL  OVER  LIVING  COSTS  177 

largely  upon  the  principle  of  unregulated  competition. 
Between  these  two  lies  a  stretch  of  centuries  during 
which  philosophies  of  government  as  reflected  in  the 
principles  of  the  law  were  undergoing  a  far-reaching  but 
almost  imperceptibly  gradual  change.^ 

The  winning  of  our  independence  from  Great  Britain 
was  accompanied  and  followed  by  the  adoption  of 
written  constitutions  containing  declarations  of  indi- 
vidual rights  over  against  the  powers  of  the  govern- 
ment. It  is  entirely  erroneous  to  suppose  that  these 
strokes  of  the  pen  resulted  in  a  sudden  break  in  the  law, 
in  the  immediate  overthrow  of  an  old  economic  order 
and  an  over-night  establishment  of  a  new  order.  The 
principle  of  competition  in  trades  and  industries  had 
been  gaining  ground  long  before  the  Revolution  fell.  In 
the  early  part  of  the  nineteenth  century  it  came  to 
furnish  the  very  foundation  of  our  industrial  organiza- 
tion. This  was  probably  due,  however,  far  more  largely 
to  the  wide  acceptance  of  the  doctrines  of  individualism 
and  of  laissez  faire  in  matters  political  than  to  actual 
protection  extended  by  the  courts  under  the  constitu- 
tional guaranties  in  behalf  of  liberty  and  of  property. 
Within  the  last  fifty  years  we  have  again  been  moving 
in  the  direction  of  regulating  freedom  of  competition, 
and  the  aid  of  courts  has  been  repeatedly  invoked  to 
protect  the  individual  against  such  interference  by  the 
government.  It  is  especially  in  this  later  period  that 
the  scope  of  our  constitutional  limitations  upon  the 
government's  power  to  regulate  has  been  unfolded. 

Now  it  is  simply  a  fact  that  both  the  courts  and  the 
commentators  have,  in  an  effort  to  establish  the  con- 

'  Beale  and  Wyman,  Railroad  Rate  Regulation,  2d  ed.,  ch.  I. 


178  CITY  PROGRESS  AND  THE  LAW 

tinuity  of  the  law,  relied  for  support  upon  the  practices 
which  were  pursued  and  the  principles  of  law  which  were 
applied  in  the  era  that  antedated  the  establishment  of 
our  constitutional  system.  Thus  in  the  leading  modern 
case  upon  this  subject,^  decided  in  1877,  the  United 
States  Supreme  Court  said : 

It  has  been  customary  in  England  from  time  immemorial,  and  in 
this  country  from  its  first  colonization,  to  regulate  ferries,  common 
carriers,  hackmen,  bakers,  millers,  wharfingers,  innkeepers,  etc., 
and  in  so  doing  to  fix  a  maximum  of  charge  to  be  made  for  services 
rendered,  accommodations  furnished,  and  articles  sold.  To  this 
day,  statutes  are  to  be  found  in  many  of  the  states  upon  some  or  all 
these  subjects;  and  we  think  it  has  never  yet  been  successfully  con- 
tended that  such  legislation  came  within  any  of  the  constitutional 
prohibitions  against  interference  with  private  property. 

It  is  submitted,  nevertheless,  that  if  the  principles  to 
be  applied  in  the  determination  of  the  power  of  the 
government  to  regulate  business  prices  and  service  are 
to  be  found  in  immemorial  custom,  the  court  must  be 
prepared  to  sustain  regulation  of  a  far  more  extensive 
character  than  that  which  has  been  attempted  in 
modern  times.  The  court  did  not  intend  in  this  opinion 
to  express  the  view  that  the  government  enjoyed  the 
power  to  regulate  prices  in  any  and  every  trade  or 
calling.  It  was  only  business  affected  with  a  peculiar 
public  interest  that  could  be  so  regulated.  It  was  ev- 
idently the  opinion  of  the  court,  although  the  point  was 
not  specifically  made,  that  the  customary  regulation  of 
the  trades  enumerated  was  and  always  had  been 
founded  upon  the  fact  that  they  belonged  in  this  cat- 
egory of  business.     Indeed,  in  a  later  case  involving 

*  Munn  V.  Illinois,  94  U.  S.  113  (1877). 


CONTROL  OVER  LIVING  COSTS  179 

precisely  the  same  question'*  the  court  expressly  de- 
clared that ' 'while  no  general  power  resided  in  the  legis- 
lature to  regulate  private  business,  prescribe  the 
conditions  under  which  It  should  be  conducted,  fix  the 
price  of  commodities  and  services,  or  Interfere  with  free- 
dom of  contract,  and  while  merchant,  manufacturer, 
artisan,  and  laborer,  under  our  system  of  government, 
are  left  to  pursue  and  provide  for  their  own  Interests  in 
their  own  way,  untrammeled  by  burdensome  and  re- 
strictive regulations,  which,  however  common  In  rude 
and  irregular  times,  are  inconsistent  with  constitutional 
liberty,  yet  there  might  be  special  conditions  and  cir- 
cumstances which  brought  the  business  .  .  .  within 
principles  which,  by  the  common  law  and  the  practice 
of  free  governments,  justified  legislative  control  and 
regulation  in  the  particular  case."^ 

In  other  words.  It  was  the  view  of  the  court  that  some 
businesses  are  to  be  regarded  as  public  and  others  as 
private,  and  that  now,  as  formerly,  the  power  of  the 
government  to  regulate  prices  and  services  extends  to 
the  former  but  not  to  the  latter.  From  the  historical 
viewpoint  it  Is  open  to  serious  question  whether  the 
regulatory  power  of  the  government  as  exercised  over 
business  in  earlier  times  rested  upon  any  such  concep- 
tion. A  recent  commentator^  has  attempted  to  show 
not  only  that  the  distinction  between  public  and  private 
business  "has  not  been  helpful  in  practice,'*  and  Is^'theo- 

*  Budd  V.  New  York,  143  U.  S.  517  (1892). 

^  This  was  part  of  a  paraphrase  of  the  opinion  of  the  New  York  court  of 
appeals  in  People  v.  Budd,  117  N.  Y.  i  (1889),  which  the  United  States 
Supreme  Court  made  and  declared  to  be  "sound  and  just." 

'  Edward  A.  Alder,  Business  Jurisprudence,  in  28  Harvard  Law  Review, 
p.  135. 


i8o  CITY  PROGRESS  AND  THE  LAW 

retically  unsound,"  but  also  that  it  is  "the  result  of  a 
misconstruction  of  the  cases  upon  which  it  purports  to 
rest  as  well  as  of  the  overlooking  of  material  evidence." 
He  argues  with  much  force  that,  in  consideration  of  the 
extensive  list  of  employments  that  were  formerly  de- 
scribed as  ''common"  occupations,  the  term*'  common" 
cannot  properly  be  regarded  as  synonymous  with  "pub- 
lic," as  it  has  been  in  the  case  of  common  carriers,  and 
that  no  evidence  whatever  has  been  produced  to  show 
that  the  businesses  or  * 'common"  employments  which 
were  formerly  subject  to  special  control  by  the  law  had 
in  fact  any  '^exceptional  relation  to  the  public."^ 

While  it  is  probably  true  that  the  regulatory  powers 
formerly  exercised  by  the  government  over  many  kinds 
of  business  were  not  based  wholly  upon  the  character  of 
the  business  but  were  rather  in  the  nature  of  survivals 
from  the  era  of  mercantilism,  when  industry  was  almost 
completely  organized  upon  the  basis  of  regulated  and 

'  In  respect  to  the  argument  sometimes  advanced  that  this  exceptional 
relation  to  the  public  arose  out  of  monopoly,  and  that  economic  changes  in 
this  respect  account  for  the  disappearance  of  many  trades  from  the  list  of 
those  subject  to  regulation  he  says:  "When  we  consider  the  principle  of 
monopoly  as  producing  in  the  early  days  the  supposed  distinction  between 
classes  of  callings,  its  failure  is  clearly  apparent,  for  no  evidence  of  any  kind 
is  offered  that  carriers  were  less  numerous  than  butchers,  or  that  innkeepers 
were  fewer  than  carpenters,  or  barbers  than  weavers.  Tailors  were  no  less 
numerous  than  fullers,  so  far  as  the  evidence  goes,  and  they  were,  in  1400, 
numerous  enough  in  Beverley  to  have  a  guild  of  their  own.  So  were  the 
barbers  and  surgeons,  and  it  is  noteworthy  that  the  guild  at  that  time  pro- 
vided for  a  tax  upon  itinerant  surgeons  who  were  in  the  town  over  eight  days. 
Monopoly,  therefore,  cannot  be  accepted  as  an  explanation  of  the  distinction 
between  public  and  private  callings,  either  at  present  or  in  the  distant  past, 
for  it  does  not  explain  the  distinctions  within  a  calling  or  account  for  the 
difference  supposed  formerly  to  exist  between  such  tradespeople  as  inn- 
keepers and  tailors,  and  such  as  carpenters  and  brewers,  and  it  fails  to 
account  for  the  present-day  difference  in  the  treatment  of  a  city  hotel, 
struggling  under  competition,  and  a  coal  company  absolutely  controlling 
the  coal  supply  of  a  city  or  state." 


CONTROL  OVER  LIVING  COSTS  i8i 

legalized  monopoly,  it  cannot  be  too  greatly  emphasized 
that  the  courts  do  not  accept  this  view.  On  the  con- 
trary, they  hold  that  the  principles  now  applied  in 
determining  the  power  of  the  government  to  regulate 
are  identical  with  the  old  principles  of  the  common  law. 
As  one  commentator  has  expressed  it:^ 

The  common  law  persists  from  age  to  age,  and  though  the  instance 
of  its  rules  may  be  seen  to  change  as  old  conditions  pass  away  and 
new  conditions  arise,  its  fundamental  principles  remain.  .  . 
Barber,  surgeon,  smith,  and  tailor  are  no  longer  in  common  calling 
because  the  situation  in  the  modern  times  does  not  require  it;  but 
innkeeper,  carrier,  ferryman  and  wharfinger  are  still  in  that  classi- 
fication, since  even  in  modern  business  the  conditions  require  them 
to  be  so  treated.  With  changed  economic  conditions  in  modern 
times  new  callings  have  come  into  being  with  such  potentialities  that 
this  special  law  has  been  utilized  as  never  before  in  regulating  them. 
Indeed,  from  the  point  of  view  of  one  who  believes  in  our  common 
law,  the  class  of  public  callings  is  capable  of  indefinite  extension  when- 
ever new  conditions  bring  new  employments  within  its  scope.  And 
in  all  times  our  law  has  held  to  the  principles  that  this  peculiar  regu- 
lation was  necessary  in  certain  kinds  of  business.  It  depends  largely 
upon  the  opinion  current  at  the  time  how  far  this  law  shall  be  ex- 
tended. 

There  is  no  question  that  this  attempt  to  establish 
an  identity  between  the  principles  of  modern  and  of 
ancient  regulation  of  business  has  led  to  confusion  and 
uncertainty,  as  well  as  to  some  obvious  contradiction. 
For  example,  as  we  have  seen,  the  highest  tribunal  of 
.the  land  mentioned  the  baking  business  among  the  trades 
which  have  been* 'from  time  immemorial' 'subject  to  reg- 
ulation and  price-fixing.  Moreover,  an  Alabama  case 
upon  this  subject,  decided  in  1841,  was  cited  with  ap- 

'  Beale  and  Wyman,  Railroad  Rate  Regulation,  2d  ed.,  p.  11. 


I82  CITY  PROGRESS  AND  THE  LAW 

proval.  This  case  ®  involved  the  validity  of  a  municipal 
ordinance  regulating  the  weight  and  price  of  bread — an 
ordinance  which  was  not  at  all  comparable  to  the  mod- 
ern municipal  ordinances  which  require,  as  a  protection 
against  fraud,  that  the  weight  of  a  loaf  of  bread  shall  be 
stamped  upon  it.  Referring  generally  to  the  power  of 
the  government  to  regulate  individual  liberty  and  pri- 
vate property  where  the  public  interest  is  concerned, 
the  Alabama  court  said : 

Where  a  great  number  of  persons  are  collected  together  in  a  town 
or  city,  a  regular  supply  of  wholesome  bread  is  a  matter  of  the  ut- 
most importance ;  and  whatever  doubts  may  have  been  thrown  over 
the  question  by  the  theories  of  political  economists,  it  would  seem 
that  experience  has  shown  that  this  great  end  is  better  secured  by 
licensing  a  sufficient  number  of  bakers  and  by  an  assize  of  bread, 
than  by  leaving  it  to  the  voluntary  acts  of  individuals.  By  this 
means  a  constant  supply  is  obtained  without  that  fluctuation  in 
quantity  which  would  be  the  inevitable  result  of  throwing  the  trade 
entirely  open,  and  the  consequent  rise  in  price,  when  from  accident 
or  design  a  sufficient  supply  was  not  produced.  The  interest  of  the 
city  in  always  having  an  abundant  supply  will  be  a  sufficient  guar- 
anty against  any  abuse  of  the  right  to  regulate  the  weight,  the  conse- 
quence of  which  would  be  to  drive  the  baker  from  the  trade.  .  . 
The  legislature  having  full  power  to  pass  such  laws  as  is  deemed  nec- 
essary for  the  public  good,  their  acts  cannot  be  impeached  on  the 
ground,  that  they  are  unwise,  or  not  in  accordance  with  just  and 
enlightened  views  of  political  economy,  as  understood  at  the  present 
day.  The  laws  against  usury,  and  quarantine,  and  other  sanitary 
regulations,  are  by  many  considered  as  most  vexatious  and  improper 
restraints  on  trade  and  commerce,  but  so  long  as  they  remain  in  force, 
must  be  enforced  by  courts  of  justice;  arguments  against  their  policy « 
must  be  addressed  to  the  legislative  department  of  the  government. 

The  argument  thus  advanced  is,  of  course,  not  with- 
out force;   but  it  must  be  recognized  that,  since  "man 

•  Mayor  and  Aldermen  of  Mobile  v.  Yuille,  3  Ala.  137  (1841). 


CONTROL  OVER  LIVING  COSTS  183 

does  not  live  by  bread  alone,"  it  could  be  applied  with 
equal  force  to  numerous  other  trades  and  industries. 
In  this  connection  it  is  of  interest  to  note  that,  although 
the  United  States  Supreme  Court  approved  this  Al- 
abama decision,  the  same  court  at  a  later  date  held 
void  a  law  of  New  York  regulating  the  hours  of  labor 
in  the  baking  business,  ^^  which  was  classed  among  the 
^  'ordinary  trades  and  occupations  of  the  people. ' '  More- 
over, in  a  still  later  case,^!  sustaining  the  validity  of  a 
Chicago  ordinance  regulating  the  sizes  of  loaves  of 
bread  that  might  be  sold,  the  court  was  careful  to  point 
out  that  the  council  "had  not  fixed  the  price  at  which 
bread  might  be  sold;"  and  there  was  no  intimation  that 
this  might  have  been  done  and  no  reference  to  the 
"immemorial  practice"  with  respect  to  the  baking  trade. 

What  is  a  ** public^  ^  business? 

In  spite  of  the  degree  of  confusion  and  uncertainty 
in  the  law  that  have  resulted  from  the  attempt  to  main- 
tain a  continuity  of  thought  and  purpose  between  the 
old  and  the  new  principles  of  regulation,  it  must  be 
taken  as  settled  that  prices  and  services  may  be  regu- 
lated only  for  business  that  is  affected  with  a  peculiar 
public  interest.  The  question,  therefore,  is:  What  are 
the  facts  or  conditions  that  establish  the  public  charac- 
ter of  a  business?  This  question  cannot  be  answered  by 
a  rule  of  thumb. 

^°  Lochner  v.  New  York,  198  U.  S.  45  (1904).  Of  course  the  points  in- 
volved were  not  identical.  It  would  seem,  however,  that  if  the  baking 
business  is  of  so  peculiarly  public  a  character  as  to  justify  price-fixing,  it 
might  certainly  be  regarded  as  sufficiently  distinctive  to  require  regulation 
of  hours  of  labor. 

1^  Schmidinger  v.  City  of  Chicago,  226  U.  S.  578  (1912). 


1 84  CITY  PROGRESS  AND  THE  LAW 

It  is  certain  that  all  those  lines  of  business  that  re- 
quire a  grant  of  special  privilege  from  the  government 
are  within  the  category  of  public  businesses.  These  in- 
clude such  lines  of  business  as  the  usual  public  utili- 
ties^2 — ^water,  gas,  electric  current,  telephone  and  tele- 
graph communication,  railway  and  ferry  transporta- 
tion. Even  cabmen,  whose  fares  have  for  a  long  time 
been  subject  to  regulation,  fall  within  this  class  because 
of  the  special  uses  which  they  make  of  the  streets  for 
cabstands  and  the  solicitation  of  trade.  It  is  perfectly 
easy  to  comprehend  that  where  a  business  necessitates 
a  special  privilege  from  the  government,  which  means 
from  the  public,  that  business  is  of  necessity  affected 
with  a  peculiar  public  interest.  And  there  is  no  ques- 
tion that  this  is  the  principal  kind  of  business  which  is 
in  modern  times  subjected  to  control  in  the  matter  of 
charges  and  service.  When,  however,  we  pass  beyond 
this  class  of  business,  we  emerge  into  uncertainty. 

Is  monopoly  an  element  that  establishes  the  public 
character  of  a  business?  At  least  three  kinds  of  mon- 
opoly may  be  considered.  There  is,  in  the  first  place, 
natural  monopoly,  based  upon  exclusive  control  of  a 
source  or  of  access  to  a  source  of  supply.  There  may, 
for  example,  in  the  case  of  this  or  that  city  be  only  one 
available  source  of  water  supply;  but  in  the  business  of 
furnishing  water  there  exists  also  the  necessity  of  the 
special  privilege.  The  fact  is  that  absolute  natural 
monopoly  does  not  often  exist;  and  it  is  impossible  to 
assert  whether  or  not,  in  the  complete  absence  of  any 
other  element,  the  law  would  recognize  this  as  a  cir- 
cumstance which  established  the  public  character  of  the 

"  Supra,  ch.  VI. 


CONTROL  OVER  LIVING  COSTS  185 

business.  Certainly  it  is  difficult  to  see  how  any  cir- 
cumstance could  create  a  larger  public  interest  than 
the  existence  of  an  unquestionable  natural  monopoly. 

In  the  second  place,  there  is  monopoly  in  fact — that 
is,  monopoly  that  exists  merely  because,  although  the 
field  of  competition  is  wide  open,  no  competition  in  fact 
exists.  Of  this  character  is  the  single  grocery  store  of 
the  village;  and  indeed  it  is  perfectly  manifest  that 
practically  any  kind  of  business  might  find  itself  in  this 
situation  in  a  community  or  part  of  a  community  in 
which  it  operated  without  actual  competition.  It  may 
be  argued  with  considerable  force  that  under  these  cir- 
cumstances the  fear  of  competition  is  quite  as  strong  as 
actual  competition  in  securing  adequate  service  at 
reasonable  prices. ^^  As  a  general  rule  this  may  be  true, 
although  it  must  be  recognized  that  where  the  market  is 
not  large  enough  to  support  at  least  two  competitors, 
the  inducement  to  enter  the  field  is  slight. 

It  is  simply  a  fact  that  the  government  has  not  often 
attempted  to  regulate  prices  and  service  because  of  the 
existence  of  monopolies  based  simply  upon  fact.  Within 
this  class  of  regulations,  however,  must  doubtless  be 
put  a  law  of  Illinois,  enacted  in  1871,  which  fixed  the 
maximum  rates  that  might  be  charged  by  grain  ele- 

^'  In  a  dissenting  opinion  read  in  Budd  v.  New  York,  143  U.  S.  517  (1892), 
Mr.  Justice  Brewer,  omitting  any  reference  to  natural  monopolies,  said: 
"There  are  two  kinds  of  monopoly;  one  of  law,  the  other  of  fact  ...  A 
monopoly  of  fact  any  one  can  break,  and  there  is  no  necessity  for  legislative 
interference.  It  exists  when  any  one  by  his  money  and  labor  furnishes 
facilities  for  business  which  no  one  else  has.  A  man  puts  up  in  a  city  the 
only  building  suitable  for  offices.  He  has  therefore  a  monopoly  of  that 
business;  but  it  is  a  monopoly  of  fact,  which  any  one  can  break  who,  with 
like  business  courage  puts  his  means  into  a  similar  building.  Because  of  the 
monopoly  feature  subject  thus  easily  to  be  broken,  may  the  legislature 
regulate  the  price  at  which  he  will  lease  his  offices?" 


I86  CITY  PROGRESS  AND  THE  LAW 

vators  through  which  most  of  the  grain  from  the  West 
and  Northwest  passed  en  route  to  the  East.  This  law 
gave  rise  to  the  famous  case  of  Munn  v.  Illinois, ^^  to 
which  reference  has  already  been  made.  The  court 
stood  upon  the  general  doctrine  that  "when  the  owner 
of  property  devotes  it  to  a  use  in  which  the  public  has 
an  interest,  he  in  effect  grants  to  the  public  an  interest 
in  such  use,  and  must  to  the  extent  of  that  interest, 
submit  to  be  controlled  by  the  public,  for  the  common 
good,  as  long  as  he  maintains  the  use."^^  It  was  only 
necessary  to  determine  whether  the  grain  elevators  in 
Chicago  were  property  devoted  to  a  use  in  which  the 
public  had  an  interest.  By  the  following  course  of 
reasoning  the  court  concluded  that  they  belonged  in 
this  category: 

In  this  connection  it  must  also  be  borne  in  mind  that,  although  in 
1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this  par- 
ticular business,  and  owned  by  about  thirty  persons,  nine  business 
firms  controlled  them,  and  that  the  prices  charged  and  received  for 
storage  were  such  "as  have  been  from  year  to  year  agreed  upon  and 
established  by  the  different  elevators  or  warehouses  in  the  city  of 
Chicago,  and  which  rates  have  been  annually  published  in  one  or 
more  newspapers  printed  in  said  city,  in  the  month  of  January  in 
each  year,  as  the  established  rates  for  the  year  then  next  ensuing 
such  publication."  Thus  it  is  apparent  that  all  the  elevating  facili- 
ties through  which  these  vast  productions  "of  seven  or  eight  great 
states  of  the  West"  must  pass  on  the  way  "to  four  or  five  of  the  v'itates 
on  the  seashore"  may  be  a  "virtual"  monopoly. 

It  was  not  alleged  that  the  field  of  competition  in 
grain  elevators  was  not  open  to  other  competitors  who 

"94  U.  S.  113  (1877).     Reaffirmed  as  to  a  similar  law  in  New  York  in 
Budd  V.  New  York,  143  U.  S.  517  (1892). 
^^  Quoted  from  the  syllabus. 


CONTROL  OVER  LIVING  COSTS  187 

might  charge  lower  rates.  It  was  not  alleged  that  the 
elevators  were  on  the  railways'  rights  of  way  and,  there- 
fore, shared  in  their  special  privileges  granted  by  the 
government.  So  far  as  the  annual  rate  agreement  was 
concerned  it  is  obvious  that  this  could  have  been  reached 
by  an  action  brought  against  a  combination  or  conspir- 
acy in  restraint  of  trade.  Indeed,  it  seems  clear  the 
*  Virtual  monopoly"  which  was  held  to  exist  here,  if  it 
was  founded  upon  anything  more  substantial  than  an 
illegal  conspiracy,  was  at  best  only  a  gigantic  monopoly 
in  fact.  The  logic  of  the  case  would  seem  to  be  that 
any  monopoly  in  fact  is  a  business  affected  with  a  public 
interest  and  is,  therefore,  subject  to  price  and  service 
regulation.  It  is,  nevertheless,  of  interest  to  note  that 
in  the  more  than  forty  years  since  this  decision  was 
handed  down,  there  has  been  scarcely  any  development 
of  the  policy  of  regulating  business  of  this  kind.  ^^  Cer- 
tainly there  is  no  instance  in  which  a  municipal  corpor- 
ation has  attempted  to  regulate  business  upon  this 
principle. 

Finally  must  be  mentioned  those  monopolies  which 
are  founded  upon  exclusive  legal  grants.  Every  such 
grant  is  a  special  privilege  and  there  can  be  no  question, 
therefore,  of  the  power  of  the  government  to  regulate 
the  business  of  the  grantee.  Formerly,  as  has  been 
noted,  such  monopolies  were  created  in  many  lines  of 
business.  In  modem  times  they  are  confined  almost 
wholly  to  the  so-called  public  utilities,  it  being  recog- 
nized that,  generally  speaking,  the  results  of  regulated 
monopoly  are,  so  far  as  the  interests  of  the  public  are 

^'  The  so-called  anti-trust  legislation,  which  has  not  involved  regulation 
of  prices,  is  of  a  wholly  different  character. 


l88  CITY  PROGRESS  AND  THE  LAW 

concerned,  superior  to  those  of  unregulated  competition. 
Even  where  a  public  service  corporation  is  not  granted 
an  exclusive  privilege,  but  is  subject  to  possible  com- 
petition, it  may  for  practical  purposes  be  regarded  as 
enjoying  a  legal  monopoly  so  long  as  the  government 
refuses  or  fails  to  grant  any  competitive  franchise;  for 
the  opening  of  the  field  of  competition  in  such  cases 
depends  upon  a  legal  act.  It  is  a  matter  of  no  practical 
consequence  whether  the  public  character  of  a  so-called 
public  utility  is  rested  upon  its  special  privilege  or  upon 
the  fact  that  it  is  a  natural,  an  actual,  or  a  legal 
monopoly. 

Whether  the  government,  under  our  constitutional 
system,  has  the  power  to  establish  a  legal  monopoly  in 
any  line  of  business  that  it  chooses  is  open  to  grave 
question.  The  authority  to  vest  in  a  single  corporation 
the  exclusive  power  to  slaughter  cattle  within  a  city 
has  been  sustained  under  the  power  to  protect  the  public 
health  ;i^  and  presumably  this  method  of  control  might 
be  extended  to  other  trades  and  industries  that  are 
subject  to  regulation  under  the  usual  subjects  of  the 
police  power.  Sometimes,  also,  there  is  an  element  of 
monopoly  in  the  granting  of  regulatory  licenses,  as 
where  an  absolute  limit  is  set  to  the  number  of  liquor 
licenses  that  may  be  issued  in  a  city.  But  restrictions 
of  this  latter  kind  have  been  applied  only  to  businesses 
that  may  be  wholly  prohibited  under  the  police  power. 
As  a  rule,  a  license  must  be  issued  to  any  applicant 
who  satisfies  the  requirements  of  the  law.  The  policy 
of  legal  monopoly,  therefore,  plays  a  very  slight  role 
even  in  the  realm  of  the  police  power.    As  a  means  of 

"  Slaughter  House  Cases,  i6  Wall.  36  (1872). 


CONTROL  OVER  LIVING  COSTS  189 

controlling  prices  and  services  in  business  generally  it 
would  be  as  doubtful  of  constitutionality  as  of  pro- 
priety. 

From  this  brief  review  it  seems  reasonable  to  con- 
clude that  the  existence  of  monopoly  in  one  or  more  of 
its  various  forms  has  been  of  little  importance  in  de- 
termining the  public  character  of  a  business  except  in 
the  case  of  those  businesses  which,  whether  monopo- 
listic or  not,  are  in  any  case  regarded  as  affected  with  a 
public  interest  because  they  require  a  grant  of  special 
privilege  from  the  government. 

Is  there,  then,  any  business  which,  although  not  re- 
quiring a  special  privilege  and  not  entailing  any  element 
of  monopoly,  is  nevertheless  regarded  as  a  public  busi- 
ness? In  the  cases  upon  this  subject  it  is  customary  to 
mention  among  the  callings  that  are  subject  to  control 
in  the  matter  of  prices  and  service  the  trades  of  inn- 
keeper, miller,  drayman,  wharfinger,  and  perhaps  one 
or  two  others.  In  point  of  fact  the  regulation  that  is 
now  imposed  upon  these  extends,  where  it  applies  at  all, 
to  nothing  further  than  the  obligation  to  serve  all  who 
come.  Their  charges  are  seldom,  if  ever,  regulated  in 
modem  times;  and  even  in  the  matter  of  obligation  to 
ser\^e  there  is  a  considerable  element  of  fiction.  In 
practice  there  are  usually  effective  ways  of  avoiding 
this  obligation  in  the  rare  instances  in  which  it  seems 
to  be  desirable  to  do  so.  Moreover,  it  does  seem  little 
short  of  ridiculous  to  stress  the  obligation  to  serve  in  a 
few  lines  of  business  when  a  perpetual  struggle  for  an 
opportunity  to  serve  lies  at  the  foundation  of  all  busi- 
ness, even  though  occasionally  it  be  true  that  the  rule 
of  obligation  is  of  some  importance. 


190  CITY  PROGRESS  AND  THE  LAW 

The  regulation  of  the  maximum  rate  of  interest  that 
may  be  charged  has  sometimes  been  cited  as  an  instance 
of  regulation  of  charges  by  the  government;  and  such 
it  undoubtedly  is.  It  cannot  be  supported  upon  the 
principle  either  of  a  special  privilege  or  of  monopoly. 
The  argument  that  the  taking  of  interest  was  wholly 
prohibited  by  the  ancient  common  law  and  that  the 
later  allowance  of  limited  interest  is,  therefore,  in  the 
nature  of  a  privilege  is,  however  true  historically,  too 
attenuated  to  command  general  acceptance.  Doubt- 
less it  ought  to  be  freely  admitted  that  this  is  at  least 
one  instance  in  which  the  police  power  of  preventing 
economic  oppression  is  exercised  through  the  medium 
of  price  regulation;  although  on  the  same  theory,  it 
must  be  recognized,  the  price  of  any  and  every  com- 
modity or  service  could  be  made  the  subject  of  like 
control.  In  other  words,  here  is  a  policy  of  regulation 
which,  without  being  bolstered  up  by  any  theory  of 
special  privilege  from  the  government  or  of  monopoly, 
has  survived  to  us  unbroken  from  the  era  when  such 
reasons  for  public  regulation  of  business  were  unneces- 
sary. It  is  certainly  difficult  to  see,  at  least  from  the 
theoretical  point  of  view,  why  it  is  any  more  necessary 
or  advisable  to  fix  the  maximum  charges  at  which 
money  may  be  loaned  under  the  usual  competitive 
conditions  of  the  money  market  than  it  is  to  fix  the 
charges  for  any  other  competitive  commodity  or  service. 

On  the  whole,  it  seems  fair  to  conclude  that  while  the 
law  on  this  subject,  largely  as  a  result  of  the  attempt 
to  identify  the  principles  of  ancient  and  of  modem 
regulation,  is  in  a  state  of  considerable  uncertainty,  it 
is  open  to  serious  question  whether,  under  our  constitu- 


CONTROL  OVER  LIVING  COSTS  191 

tional  system,  a  city  could  be  empowered  to  regulate 
business  prices  generally  in  the  interest  of  lowering  the 
costs  of  living.  It  is  probably  because  of  this  doubt 
that  there  appears  to  be  no  active  agitation  for  the 
trial  of  this  method  of  solving  the  problem  of  living 
costs.  It  may  be  that  under  the  power  to  regulate 
interstate  and  foreign  commerce  Congress  has  the  con- 
stitutional competence  to  fix  the  prices  of  all  commodi- 
ties that  enter  into  such  commerce.  There  has  been 
no  judicial  determination  upon  this  point  for  the  reason 
that,  except  as  a  war  measure,  which  must  be  wholly 
distinguished.  Congress  has  never  attempted  to  exercise 
such  power.  Even  as  a  war  measure  it  is  open  to  grave 
doubt  whether  the  states  would  be  competent  to  fix 
prices  generally  or  to  delegate  such  authority  to  cities ; 
the  war  power  belongs  to  the  national  government,  not 
to  the  states.  Upon  the  theory  of  emergency,  roughly 
comparable  to  the  emergency  which  justifies  the  sum- 
mary destruction  of  a  building  in  the  path  of  a  sweeping 
fire  or  the  exercise  of  almost  unlimited  powers  by  health 
officers  in  time  of  great  danger,  the  fixing  of  prices  by 
states  and  cities  might  perhaps  be  sustained  in  time  of 
war  or  other  serious  calamity.  But  this  is  somewhat 
beside  the  point  of  our  discussion. 

So  far  as  the  law  itself  is  concerned,  in  its  relation  to 
normal  economic  conditions,  it  would  undoubtedly  clar- 
ify the  situation  if  the  courts  would  frankly  declare  that 
the  only  business  that  is  affected  with  a  public  interest 
(and  is,  therefore,  subject  to  price  regulation)  is  that 
which  is  operating  under  a  grant  of  special  privilege 
from  the  government;  or,  on  the  other  hand,  if  they 
would  return  to  the  notion  which  seems  probably  to 


192  CITY  PROGRESS  AND  THE  LAW 

have  prevailed  in  earlier  times — to  wit,  that  all  business 
which  is  offered  to  the  public  generally  is  public  busi- 
ness and  therefore  subject  to  reasonable  regulation. 
The  first  of  these  views  would  very  nearly  square  the 
law  with  existing  facts.  The  other  would  open  up  large 
opportunities  for  governmental  control  in  cases  where 
the  economic  laws  of  competition  had  apparently  failed. 
The  guaranty  of  due  process  of  law  would,  of  course, 
as  now  interpreted,  operate  to  restrain  the  govern- 
ment from  depriving  the  individual  of  the  right  to 
earn  a  reasonable  income  upon  his  investment.  Whether 
our  success  in  the  field  of  regulating  utility  rates  and 
service  is  sufficient  to  justify  an  extension  of  this 
practice  to  other  lines  of  business  is  wholly  a  different 
question. 

Municipal  markets 

Mention  has  been  made  of  the  fact  that  the  estab- 
lishment of  public  markets  was  one  of  the  early  func- 
tions of  the  city.  In  New  York,  for  example,  as  far 
back  as  1731,  when  a  new  charter  was  granted  to  the 
city  by  Governor  Montgomerie,  there  were  ^ve  munici- 
pal markets  in  operation.  Originally  these  markets 
were  leased  by  stalls,  but  after  1741  all  the  markets 
were  leased  to  a  single  person,  who  in  turn  sublet  the 
stalls.  Occasionally  during  the  eighteenth  century  the 
city  was  indicted  for  allowing  "Dirt  and  Nastiness"  in 
its  markets;  and  in  the  case  of  the  market  maintained 
in  the  middle  of  Broadway  near  the  present  Liberty 
street,  the  city  was  sued  for  obstructing  the  street. 
Toward  the  end  of  the  colonial  period  there  was  large 
dissatisfaction  among  the  people  and  the  market  system 


CONTROL  OVER  LIVING  COSTS  193 

began  to  break  down  as  a  result  of  the  council's  oppo- 
sition to  the  erection  of  new  markets. 

Public  markets  have  survived  to  the  present  day  in 
a  considerable  number  of  cities;  and  although  they 
occupy  places  of  varying  importance  from  city  to  city, 
there  is  no  city  that  relies  in  any  large  measure  upon 
them  in  the  matter  of  its  food  supply.  In  recent  years 
interest  in  the  whole  subject  of  public  markets,  both 
retail  and  wholesale,  has  been  revived;  and  numerous 
investigations  and  proposals  have  been  made.  Con- 
cerning the  value  of  the  public  market  and  its  relation 
to  the  cost  of  living,  opinions  do  not  agree.  However, 
a  discussion  of  this  question  and  of  the  numerous  inter- 
esting reports  that  have  recently  been  made  would 
take  us  far  afield  from  our  subject.  We  are  dealing 
with  the  principles  of  the  law;  and  there  can  be  no 
shadow  of  doubt  that  the  ownership  and  manage'ment 
of  public  markets  is  an  entirely  proper  municipal 
function.  Indeed  it  was  early  held  in  Massachusetts 
that,  by  reason  of  "long  established  and  well  settled 
usage,"  towns  needed  no  specific  grant  oi  authority  to 
erect  market  houses. ^^ 

What  lines  of  business  may  the  city  enter? 

Reference  has  previously  been  made  to  the  general 
rule  of  our  law  which  asserts  that  taxes  may  not  be 
imposed  for  a  private  purpose.  Since  taxes  are  the 
principal  source  of  municipal  revenue  in  the  United 
States,  and  since  the  general  credit  of  the  city,  which 
rests  upon  the  power  of  taxation,  is  usually  behind  one 

"Spaulding  v.  City  of  Lowell,  23  Pick.  (Mass.)  71  (1839). 


194  CITY  PROGRESS  AND  THE  LAW 

and  all  of  its  activities,  this  rule  has  an  important 
bearing  upon  the  question  of  the  competence  of  the 
state  to  empower  cities  to  enter  directly  into  the  field 
of  business  with  the  end  in  view  of  lowering  prices  or 
bettering  services.  It  is  probable  that  a  few  cities  have 
on  occasions  of  apparent  emergency  actually  bought 
and  sold  food.  Moreover,  after  the  entrance  of  the 
United  States  into  the  European  war,  one  or  two  states 
expressly  authorized  cities  to  buy  and  sell  food  in  time 
of  emergency.  ^^  There  is,  however,  no  instance  in  which 
any  American  city  has  attempted,  with  or  without 
statutory  authorization,  to  adopt  this  as  a  permanent 
policy  even  on  a  small  scale.  As  an  emergency  proposi- 
tion it  is  certainly  possible  that  the  exercise  of  such  a 
function  might  be  sustained  upon  the  theory  mentioned 
above  in  connection  with  our  discussion  of  price-fixing. 
But  there  appears  to  be  no  case  which  directly  decides 
the  question  whether  the  buying  and  selling  of  food  in 
any  circumstance  is  or  is  not  within  the  scope  of  the 
public  purpose  rule. 

In  respect  to  a  few  other  lines  of  business,  however, 
this  question  has  been  definitely  considered.  One  of 
these  is  the  coal  and  wood  business.  In  1892  the  su- 
preme court  of  Massachusetts  was  asked  by  the  legis- 
lature whether  it  was  within  the  constitutional  power  of 
the  legislature  to  empower  the  cities  and  towns  of  the 
state  to  purchase  and  sell  coal  and  wood  for  fuel.    Re- 

19  Such  laws  were  enacted  at  the  regular  session  of  the  New  Jersey  legis- 
lature in  191 7  and  at  a  special  session  of  the  New  York  legislature  in  the 
same  year.  Section  14  of  the  New  York  law  declared  that  "any  municipality 
in  this  state  may,  in  case  of  an  actual  or  anticipated  emergency  on  account 
of  a  deprivation  of  necessities,  by  reason  of  excessive  charges  or  otherwise, 
purchase  food  or  fuel  with  municipal  funds"  and  may  store  or  sell  the  same- 
Quoted  from  The  New  York  Times,  August  30,  1917. 


CONTROL  OVER  LIVING  COSTS  195 

ferring  to  the  public  purpose  rule,  the  supreme  court 

answered  :^^ 

It  is  not  easy  to  determine  in  every  case  whether  a  benefit  con- 
ferred upon  many  individuals  in  a  community  can  be  called  a  public 
service  within  the  meaning  of  the  rule  that  taxes  can  be  laid  only  for 
public  purposes.  In  general,  however,  it  may  be  said  that  the  pro- 
motion by  taxation  of  the  private  interests  of  many  individuals  is  not 
a  public  service  within  the  meaning  of  the  Constitution. 

The  court  went  on  to  argue  that  there  was  nothing 
in  the  history  of  the  adoption  of  the  constitution  that 
gives  any  countenance  to  the  theory  that  the  buying 
and  selling  of  such  articles  as  coal  and  wood  for  the  use 
of  the  inhabitants  was  regarded  at  the  time  as  one  of 
the  ordinary  functions  of  the  government  which  was 
to  be  established.  Although  cities  might  be  authorized 
to  own  and  operate  utilities  such  as  gas  and  electricity,^* 
the  public  character  of  these  rests  upon  other  grounds. 
Said  the  court  in  conclusion: 

But  when  the  Constitution  was  adopted  the  buying  and  selling  of 
wood  and  coal  for  fuel  was  a  well-known  form  of  private  business, 
which  was  generally  carried  on  as  other  kinds  of  business  were  car- 
ried on;  and  is  now  carried  on  in  much  the  same  manner  as  it  was 
then.  It  was  and  is  a  kind  of  business  which  in  its  relations  to  the 
community  did  not  and  does  not  differ  essentially  from  the  business 
of  buying  and  selling  any  other  of^  the  necessaries  of  life.  Although 
all  kinds  of  business  may  be  regulated  by  the  Legislature,  yet  to  buy 
and  sell  coal  and  wood  for  fuel  requires  no  authority  from  the  Legis- 
lature, and  requires  the  exercise  of  no  powers  derived  from  the  Legis- 
lature, and  every  person  who  chooses  can  engage  in  it  in  the  same 
manner  as  in  the  buying  and  selling  of  other  merchandise.  We  are 
not  aware  of  any  necessity  why  cities  and  towns  should  undertake 
this  form  of  business  any  more  than  many  others  which  have  always 

"Opinions  of  the  Justices,  155  Mass.  598  (1892). 

*  Citing  Opinion  of  the  Justices,  150  Mass.  592  (1890). 


196  CITY  PROGRESS  AND  THE  LAW 

been  conducted  by  private  enterprise,  and  we  are  not  called  upon  to 
consider  what  extraordinary  powers  the  Commonwealth  may  exer- 
cise, or  may  authorize  cities  and  towns  to  exercise,  in  extraordinary 
exigencies  for  the  safety  of  the  state  or  the  welfare  of  the  inhabitants. 
If  there  be  any  advantage  to  the  inhabitants  in  buying  and  selling 
coal  and  wood  for  fuel  at  the  risk  of  the  community  on  a  large  scale, 
and  on  what  has  been  called  the  cooperative  plan,  we  are  of  the 
opinion  that  the  Constitution  does  not  contemplate  this  as  one  of 
the  ends  for  which  the  government  was  established,  or  as  a  public 
service  for  which  cities  and  towns  may  be  authorized  to  tax  their  in- 
habitants. 

In  1903  this  opinion  was  reaffirmed  j^'^  but  in  answer 
to  the  question  whether  the  city  could  be  empowered 
to  buy  and  sell  fuel  in  an  extraordinary  emergency,  the 
court  expressed  the  guarded  opinion  that  in  certain 
emergencies  legislation  looking  to  this  end  might  be 
sustained. 

Quite  otherwise  was  the  decision  of  the  supreme 
court  of  Maine  in  respect  to  the  validity  of  a  law  of 
1903  which  empowered  any  city  or  town  to  establish 
"a  permanent  wood,  coal,  and  fuel  yard"  and  to  sell  fuel 
at  cost.  After  an  extended  discussion  of  the  evolution 
of  public  needs  and  municipal  functions,  the  court 
argued  as  follows  r^^ 

The  petitioners  contend  .  .  .  that  in  the  case  of  the  distribu- 
tion of  water,  and  of  light  and  heat  by  gas  or  electricity,  the  use  of 
the  public  highways  is  required  for  the  mains  and  the  poles  and  the 
wires,  that  the  purpose  is  public  because  it  is  necessary  to  obtain  per- 
mission from  public  authorities,  either  state  or  municipal,  in  order  to 
carry  it  out.    We  grant  that  in  those  cases  this  element  of  public  per- 

22  Opinion  of  the  Justices,  182  Mass.  605  (1903)-  The  New  York  law, 
mentioned  supra,  p.  194,  n.  19,  authorized  the  purchase  and  sale  of  fuel  in 
emergencies. 

"Laughlin  v.  City  of  Portland,  in  Me.  486  (1914). 


CONTROL  OVER  LIVING  COSTS  197 

mission  exists,  but  it  does  not  follow  that  the  converse  is  true  and 
that  no  purpose  is  public  where  such  permission  does  not  exist.  How 
can  this  criterion  be  applied  to  the  erection  of  public  buildings,  the 
erection  of  a  park,  the  building  of  a  memorial  hall,  or  of  a  market 
house,  or  the  maintenance  of  a  public  clock?  In  other  words,  under 
this  rule,  public  service  of  this  sort  would  be  limited  to  one  which  can 
only  be  performed  by  a  so-called  public  service  corporation  and  not 
by  an  individual  or  corporation,  independent  of  chartered  rights. 
This  is  in  our  judgment  too  narrow.  It  makes  an  incident  to  some 
forms  of  public  service  an  essential  element.  It  transforms  the 
method  or  means  of  rendering  the  service  into  the  essence  of  the 
service  itself.     .     . 

Let  us  look  at  the  question  from  a  practical  and  concrete  stand- 
point. Can  it  make  any  real  and  vital  difference  and  convert  a  pub- 
lic into  a  private  use  if  instead  of  burning  the  fuel  at  the  power  sta- 
tion to  produce  electricity,  or  at  the  central  heating  plant  to  produce 
the  heat,  and  then  conducting  it  in  the  one  case  by  wires  and  in  the 
other  by  pipes  to  the  user's  home,  the  coal  itself  is  hauled  over  the 
same  highway  to  the  same  point  of  distribution?  We  fail  to  see  it. 
It  is  only  a  different  and  simpler  mode  of  distribution. 

In  pursuing  this  line  of  reasoning  the  Maine  court 
probably  did  not  mean  to  imply  that  there  was  no  dis- 
tinction between  public  and  private  business  or  that  a 
city  might  be  empowered  to  undertake  any  and  every 
kind  of  business  enterprise.  Years  before,  it  had  been 
held  in  the  same  jurisdiction  that  towns  might  not  be 
authorized  to  go  generally  into  the  manufacturing  busi- 
ness; 24  and  in  the  case  now  at  bar  the  court  recognized 
the  necessity  of  finding  some  basis  upon  which  the 
public  character  of  the  fuel  business  might  be  estab- 
lished.   The  opinion  continued : 

In  the  case  of  fuel  the  practical  difficulty  is  caused  by  the  existence 
of  monopolistic  combinations.     .     .     The  difficulty  and  practical 

"Opinion  of  Justices,  58  Me.  590  (1871);  infra,  240. 


198  CITY  PROGRESS  AND  THE  LAW 

impossibility  of  obtaining  an  adequate  supply  for  private  needs  at 
times  in  the  past,  and  the  consequent  suffering  among  the  people, 
especially  in  the  more  populous  cities,  are  matters  of  history,  and 
this  difficulty  may  as  well  be  caused  by  unreasonable  prices  as  by 
shortage  of  quantity.  All  this  is  a  matter  of  common  knowledge  and 
cannot  be  overlooked  by  the  court.  The  supply  of  water  may  be  in- 
adequate from  one  cause,  that  of  fuel  from  another,  but  out  of  each 
arises  the  condition  which  renders  the  furnishing  of  it  by  the  munici- 
pality a  public  use. 

In  other  words,  here  an  actual  monopoly  was  alleged 
to  exist — certainly  it  was  neither  a  legal  nor  a  natural 
monopoly.  Here  were  resulting  conditions — shortage 
and  high  prices.  Such  conditions  transformed  the  fuel 
business  from  a  private  to  a  public  business  and  justi- 
fied the  entry  of  the  city.  It  was  apparently  unneces- 
sary even  to  discuss  whether  these  conditions,  caused 
by  * 'monopolistic  combinations,"  could  be  remedied  by 
other  legal  means,  state  or  federal. ^^^ 

One  may  sympathise  with  and  even  heartily  applaud 
the  judgment  reached  by  the  court  in  this  case,  more 
especially  in  view  of  the  apparent  failure  of  our  * 'anti- 
trust" legislation  to  produce  any  appreciable  effect 
upon  many  prices.  At  the  same  time  one  must  recog- 
nize that  a  legal  rule  founded  upon  the  economic  theory 
here  advanced  would  go  a  long  way  toward  destroying 
the  ** public  purpose"  rule.  Perhaps  it  ought  to  be 
destroyed.  But  would  it  not  be  better  logic,  rnore 
in  accord  with  legal  history,  and  perhaps  in  the  long 
run  more  satisfactory,   to  declare  fearlessly  that  all 

^^  See  recommendations  contained  in  the  Report  on  Anthracite  Coal  by 
the  Massachusetts  Commission  on  the  Cost  of  Living,  December  27,  1916. 
Among  other  recommendations  the  establishment  of  municipal  coal  pockets 
was  proposed.  These  would,  of  course,  be  comparable  to  ordinary  municipal 
markets. 


CONTROL  OVER  LIVING  COSTS  199 

business  is  public  business,  and  that  a  city  duly 
authorized  may,  so  far  as  constitutional  principles  are 
concerned,  embark  upon  any  business  enterprise? 
Viewed  in  the  light  of  the  slow  movement  toward 
municipal  ownership  of  the  usual  public  utilities  in  the 
United  States,  even  where  legal  capacity  has  not  been 
wanting,  it  is  highly  improbable  that  such  a  liberal  rule 
would  result  in  a  wide  and  reckless  extension  of  munici- 
pal trade. 

As  the  fuel  business  in  New  England,  so  the  ice 
business  in  the  South  has  been  the  subject  of  judicial 
consideration  as  a  municipal  enterprise;  and  the  oppos- 
ing views  are  presented  by  the  Georgia  and  the  Louisi- 
ana courts  respectively.    Says  the  Georgia  court :  ^^ 

If  a  city  has  the  right  to  furnish  heat  to  its  inhabitants,  because 
conducive  to  their  health,  comfort,  and  convenience,  we  see  no  rea- 
son why  they  should  not  be  permitted  to  furnish  ice.  The  object  in 
bringing,  by  means  of  a  waterworks  system,  water  in  pipes  from  a 
distance,  for  use  in  supplying  the  needs  of  a  city,  is  not  alone  to  ob- 
tain a  sufficient  quantity,  but  also  to  secure  that  which  is  freer  from 
impurities  than  it  is  possible  to  obtain  in  the  city  itself.  If,  in  the  hot 
season  of  the  year,  the  inhabitants  of  the  city  must,  for  sanitary  rea- 
sons, relinquish  the  cool  draft  from  the  well,  because,  as  has  been 
demonstrated,  wells  of  pure  water  cannot  be  maintained  in  populous 
communities,  surely  the  city  would  have  the  right,  were  it  prac- 
ticable, to  cool  the  water  which  it  delivers  through  pipes  as  a  sub- 
stitute, and  which  ofttimes  is  scarcely  drinkable  in  its  heated  condi- 
tion. If  not  practicable  to  cool  it  in  the  pipes,  and  if  it  be  necessary 
to  the  welfare,  comfort,  and  convenience  of  the  inhabitants  that  its 
temperature  be  lowered  before  being  used  for  drinking  purposes,  why 
can  not  the  city  provide  for  the  delivery  of  such  part  of  it  in  a  frozen 
condition,  to  be  used  in  cooling  such  part  of  the  balance  as  is  to  be 
used  for  drinking  purposes?     Is  the  difference  between  water  in 

2^  Holton  V.  Camilla,  134  Ga.  560  (1910).  There  was  no  question  here  of 
charter  power,  for  the  power  had  been  expressly  granted  by  the  legislature. 


200  CITY  PROGRESS  AND  THE  LAW 

liquid  and  in  frozen  condition  a  radical  one?  Upon  what  principle 
could  the  doctrine  rest  that  liquid  water  may  be  delivered  by  the 
city  to  its  inhabitants  by  flowage  through  pipes,  but  that  water  in 
frozen  blocks  cannot  be  delivered  by  wagons  or  otherwise?  . 
If  .  .  .  the  furnishing  of  ice  to  its  inhabitants  is  conducive  gener- 
ally to  their  health,  comfort,  and  convenience,  it  is  certainly  being 
furnished  for  a  municipal  or  public  purpose.  .  .  Why,  then,  in 
the  exercise  of  its  police  power,  may  not  a  city  guard  against  impuri- 
ties in  the  ice,  as  well  as  the  water,  used  by  its  inhabitants?  Nor  do 
we  see  any  rational  objection  to  the  idea  that  the  city  will  be  engag- 
ing in  a  manufacturing  enterprise.  The  city  might,  perhaps,  equally 
as  well  be  said  to  be  manufacturing  when  by  the  use  of  a  filtering  pro- 
cess it  changes  impure  water  into  that  which  is  pure.  When,  in  con- 
nection with  its  waterworks  system,  it  produces  ice,  it  merely,  by 
certain  processes,  changes  the  form  and  temperature  of  a  part  of  the 
water  supplied  by  that  system.  We  do  not  think  the  operation  by 
the  city  of  Camilla  of  an  ice  plant  in  connection  with  its  waterworks 
system,  or  for  the  purpose  of  furnishing  ice  to  its  inhabitants,  is  in 
violation  of  the  sections  of  the  constitution  referred  to  in  the  plaint- 
iff's petition,  or  that  it  is  illegal  for  any  reason. 

To  this  line  of  argument  the  Louisiana  court  repHes :  ^^ 

All  analogy  between  the  municipal  distribution  of  water  and  the 
municipal  distribution  of  ice  is  destroyed  by  the  fact  that  for  the 
one  business  pipes  have  to  be  laid  in  the  public  streets,  and,  neces- 
sarily, for  doing  this,  the  streets  have  to  be  torn  up  and  disturbed, 
whereas  the  other  is  a  purely  competitive  business  enterprise.  There 
would  be  analogy  between  the  two  if  the  city  were  to  abandon  the 
sovereign  mode  of  water  distribution  by  means  of  underground  con- 
duits through  the  public  streets,  and  to  go  peddling  the  liquid,  as  is 
done  in  towns  unprovided  with  waterworks  and  unblessed  by  a  suffi- 
cient rainfall  for  gathering  a  supply  in  cisterns,  and  as  has  to  be  done 
with  ice.  There  would  then  be  complete  analogy;  but  everybody 
would  then  see  that  the  town  was  no  longer  discharging  a  sovereign 
function,  but  carrying  on  a  private  enterprise. 

^  Union  Ice  &  Coal  Co.  v.  Town  of  Ruston,  (La.)  66  So.  262  (1914)-  An 
act  of  1898  authorized  any  city  or  town  to  maintain  an  ice  plant  in  connec- 
tion with  its  waterworks  or  electric  lighting  system. 


CONTROL  OVER  LIVING  COSTS  20i 

There  is  probably  little  to  be  said  in  rebuttal.  Indeed, 
the  argument  of  the  Georgia  court  on  the  ice  proposi- 
tion seems  scarcely  as  satisfactory  as  that  of  the  Maine 
court  on  the  fuel  question;  for  the  latter  court  did,  in 
last  analysis,  rely  upon  alleged  monopolistic  conditions 
to  sustain  the  public  nature  of  the  business.  The 
physical  analogy  between  water  in  liquid  and  water  in 
frozen  form  is  manifestly  no  greater  than  innumerable 
other  analogies  that  might  be  drawn;  and  whether  or 
not  a  monopoly  of  fact  actually  existed  in  this  little 
city,  the  court  did  not  rest  its  decision  upon  this  ground. 
So  far  as  the  police  power  is  concerned,  surely  it  is  a  new 
view  of  the  law  that  the  city  may  go  directly  into  any 
business  that  calls  for  regulation  under  the  police  power. 
However,  it  is  well  known  that  for  one  reason  or 
another  many  cities  have  labored  under  trying  condi- 
tions in  respect  to  the  supply  and  price  of  ice.  For 
some  time  there  has  been  agitation  here  and  there  for 
municipal  plants,  and  one  or  two  cities  have  actually 
gone  into  this  business  without  any  judicial  controversy 
having  been  raised.^^  This  does  not,  of  course,  affect 
the  unsettled  status  of  the  law. 

On  the  whole  it  may  fairly  be  concluded  that,  apart 
from  establishing  markets  and  furnishing  terminal 
facilities,  the  power  of  the  American  city  to  control 
living  costs  is  at  the  present  time  largely  a  matter  of 
doubt,  with  the  odds  probably  against  the  city.  How- 
ever questionable  as  to  historical  origin  and  however 

2*  See  Wentworth,  A  Report  on  Municipal  and  Government  Ice  Plants, 
submitted  to  the  President  of  the  Borough  of  Manhattan,  City  of  New  York, 
December  15,  1913. 


202  CITY  PROGRESS  AND  THE  LAW 

uncertain  as  to  definition,  the  distinction  between 
public  and  private  business  is  firmly  lodged  in  the  law. 
We  have  no  concern  here  with  the  policy  of  price-fixing 
or  the  merits  and  demerits  of  municipal  trade.  The 
probability  is  that  there  will  be  a  slow  expansion  of 
each  of  these  policies  under  judicial  allowance.  Those 
who  have  affection  for  legal  consistency  and  precision 
would  doubtless  like  to  see  the  distinction  either  rigidly 
applied  or  wholly  abandoned,  in  accordance  with  their 
respective  philosophies  of  government.  Certain  it  is 
that  if  difficulties  arising  out  of  the  existence  of  a  mere 
monopoly  of  fact  or  of  a  local  combination  of  dealers 
are  to  be  regarded  as  creating  a  condition  which  trans- 
forms a  private  business  into  a  public  business,  the  rule 
is  already  well  on  its  way  to  the  scrap  heaps  of  the  law. 
But  it  remains  to  be  seen  whether  the  courts  will  gen- 
erally accept  this  view. 


CHAPTER  VIII 

MUNICIPAL  RECREATION 

It  is  difficult  to  describe  with  accuracy  the  precise 
functions  of  government  that  fall  within  the  concept 
of  the  term  ''public  recreation.'*  It  is  difficult  also  to 
determine,  as  a  matter  of  policy  irrespective  of  the  law, 
the  extent  to  which  cities  should  go  in  supplying  facili- 
ties for  public  recreation.  It  is  certain,  nevertheless, 
that  the  problem  of  recreation  for  the  people,  considered 
without  any  attempt  at  exact  definition,  bears  a  tangi- 
ble relation  to  more  than  one  of  the  prime  purposes  of 
government.  Whatever  may  be  the  role  of  the  ''play 
instinct"  in  man's  psychology,  everybody  must  recog- 
nize that  refreshment  of  body  and  mind  after  toil  is 
indispensable  to  human  health.  And  however  the 
more  or  less  natural  tastes  of  individuals  may  differ  in 
the  matter  of  satisfying  their  need  for  this  refreshment, 
everybody  must  recognize  that  certain  forms  of  recrea- 
tion are  sought  by  large  numbers  of  people.  Again, 
while  it  seems  unnecessary  to  elaborate  the  lines  of 
immediate  or  indirect  connection  between  recreation 
and  education,  it  is  none  the  less  certain  that  many 
such  lines  exist;  and  of  course  the  furnishing  of  facili- 
ties for  education  has  long  been  recognized  as  an 
appropriate  function  of  government.  It  is  indisputably 
established,  moreover — if  indeed  any  scientific  evi- 
dence on  this  point  were  necessary — that  modes  of 
recreation,  which  must  of  necessity  vary  largely  with 


204  CITY  PROGRESS  AND  THE  LAW 

opportunity,  bear  a  very  definite  relation  to  the  sub- 
jects of  delinquency  and  crime.  Surely  no  one  would 
be  hardy  enough  to  argue  that  punishment  for  delin- 
quency and  criminality  is  in  itself  a  social  end.  Soci- 
ety's object  is  the  prevention  of  crime;  it  is  therefore 
superfluous  to  argue  that  any  and  every  means  looking 
toward  the  attainment  of  that  object  is  a  legitimate 
function  of  government. 

As  a  general  proposition,  then,  it  is  easy  to  link  up 
the  subject  of  public  recreation  with  some  of  the  more 
obvious  purposes  of  government.  The  only  question  is : 
what  facilities  for  recreation  should  be  provided  by  the 
government  and  what  principles  of  our  law,  if  any, 
have  been  considered  in  this  connection? 

Parks  and  playgrounds 

Certainly  the  most  important  of  the  recreational 
services  of  American  cities  is  the  establishment  and 
maintenance  of  parks.  This  term  is  used  generically  to 
cover  many  different  kinds  of  public  grounds.  It 
covers,  for  example,  city  squares,  commons,  and  public 
gardens,  which  are  usually  of  small  area  and  are  located 
both  in  residential  and  business  sections.  It  covers 
parkways  and  boulevards,  which  are  more  frequently 
than  not  streets  rather  than  parks,  although  they 
often  combine  features  of  both.  It  covers,  of  course, 
the  large  parks,  varying  in  size,  let  us  say,  from  two 
hundred  to  a  thousand  or  more  acres,  and  including 
tracts  within  the  built-up  section  of  the  city  as  well  as 
upon  its  outskirts  and  sometimes  even  beyond  its  terri- 
torial limits.  It  covers  playgrounds,  which  themselves 
vary  in  character  and  which  usually  are  independent 


MUNICIPAL  RECREATION  205 

units  although  sometimes  they  are  embraced  within 
parks  devoted  also  to  other  uses.  Finally  the  term 
park  is  used  to  cover  certain  specialized  public  grounds 
such  as  zoological  parks  or  botanical  gardens.  In  spite 
of  the  variations  in  character  and  purpose  of  these 
several  kinds  of  parks,  the  essential  object  of  all  of 
them  is  to  afford  opportunity  for  public  recreation. 

In  an  opinion  delivered  by  the  United  States  Supreme 
Court  in  1892  there  occur  some  rather  interesting  intro- 
ductory remarks  on  the  subject  of  the  legal  aspects  of 
parks.  ^  The  point  as  to  the  public  purpose  of  a  park 
was  not  at  issue  in  the  case,  but  the  court  said: 

In  the  memory  of  men  now  living,  a  proposition  to  take  private 
property,  without  the  consent  of  its  owner,  for  a  public  park,  and  to 
assess  a  proportionate  part  of  the  cost  upon  real  estate  benefited 
thereby,  would  have  been  regarded  as  a  novel  exercise  of  legislative 
power. 

It  is  true  that,  in  the  case  of  many  of  the  older  cities  and  towns, 
there  were  commons  or  public  grounds,  but  the  purpose  of  these  was 
not  to  provide  places  for  exercise  and  recreation,  but  places  on  which 
the  owners  of  domestic  animals  might  pasture  them  in  common,  and 
they  were  generally  laid  out  as  part  of  the  original  plan  of  the  town 
or  city. 

It  is  said,  in  Johnson's  Cyclopaedia,  that  the  Central  Park  of  New 
York  was  the  first  place  deliberately  provided  for  the  inhabitants  of 
any  city  or  town  in  the  United  States  for  exclusive  use  as  a  pleasure- 
ground,  for  rest  and  exercise  in  the  open  air.  However  that  may  be, 
there  is  now  scarcely  a  city  of  any  considerable  size  in  the  entire 
country  that  does  not  have,  or  has  not  projected,  such  parks. 

The  validity  of  the  legislative  acts  erecting  such  parks,  and  pro- 
viding for  their  cost,  has  been  uniformly  upheld. 

It  is  doubtless  true,  as  the  court  here  indicated,  that 
the  establishment  of  extensive  parks  is  a  fairly  modern 

1  Shoemaker  v.  United  States,  147  U.  S.  282  (1893). 


206  CITY  PROGRESS  AND  THE  LAW 

municipal  policy.  It  Is  perhaps  a  mistake,  however,  to 
give  the  impression  that  the  use  of  the  power  of  eminent 
domain  in  the  acquisition  of  park  lands  was  at  any 
time  widely  contested  as  a  * 'novel  exercise  of  legislative 
power."  In  most  of  the  cases  which  the  Supreme 
Court  went  on  to  cite  ^  in  support  of  the  rule  that  ''land 
taken  in  a  city  for  public  parks  and  squares,  by  author- 
ity of  law,  whether  advantageous  to  the  public  for 
recreation,  health  or  business,  is  taken  for  a  public  use," 
no  contention  to  the  contrary  was  apparently  made.  An 
early  New  York  case,  decided  in  1836,^  may  possibly 
be  regarded  as  an  exception.  The  contention  was  there 
urged  that  the  purpose  for  which  property  was  taken 
for  a  public  square  in  the  city  of  Albany  was  * 'not  public, 
because  the  benefit  is  limited  to,  and  the  expense  as- 
sessed upon  a  few  individuals."  In  answer  the  court 
said: 

Private  property  is  taken  for  public  use,  when  it  is  appropriated 
to  the  common  use  of  the  public  at  large.  A  stronger  instance  can- 
not be  given,  than  that  of  a  lot  of  an  individual  in  a  city  converted 
into  a  street;  the  former  owner  has  no  longer  any  interest  in  or  con- 
trol over  the  property,  but  it  becomes  the  property  of  the  public  at 
large,  and  under  the  control  of  the  public  authorities.  A  public 
square  depends  on  the  same  principles;  it  is  for  public  use,  whether 
it  is  intended  to  be  travelled  upon  or  not.  The  mode  of  compensa- 
tion for  such  property  is  not  important. 

^  Brooklyn  Park  Commissioners  v.  Armstrong,  45  N.  Y.  234  (1871);  In  re 
Commissioners  of  the  Central  Park,  63  Barb.  (N.  Y.)  282  (1872);  Owners 
of  Ground  v.  Mayor  of  Albany,  15  Wend.  (N.  Y.)  374  (1836);  Holt  v.  Com- 
mon Council  of  Somerville,  127  Mass.  408  (1879);  Foster  v.  Boston  Park 
Commissioners,  131  Mass.  225  (1881);  also  133  Mass.  321  (1882);  St. 
Louis  County  Court  v.  Griswold,  58  Mo.  175  (1874);  Kerr  v.  South  Park 
Commissioners,  117  U.  S.  379  (1886). 

^Owners  of  Ground  v.  Mayor  of  Albany,  15  Wend.  (N.  Y.)  374 
(1836). 


MUNICIPAL  RECREATION  207 

In  this  case  the  court  was  invited  to  consider  an  action 
involving  not  only  appropriation  of  property  by  emi- 
nent domain  but  also  the  policy  of  paying  for  the  prop- 
erty by  special  assessments.  Although  this  latter 
policy  was  not  wholly  novel  in  1836,  it  was  by  no  means 
common.'*  It  is  probable,  therefore,  that  the  allegation 
concerning  the  non-public  character  of  the  public 
square  in  question  was  prompted  chiefly  by  the  fact 
that  it  was  paid  for  not  by  the  public  at  large  but  by  a 
few  private  persons. 

In  a  much  later  New  York  case  ^it  was  said  that  "the 
courts  of  this  state  have  repeatedly  held  that  land 
taken  in  a  city  for  public  parks  and  squares,  by  author- 
ity of  law,  whether  advantageous  to  the  public  for 
recreation,  health  or  business,  is  taken  for  a  public  use; 
and  there  appears  to  be  no  reason  for  doubt  on  the 
subject."  In  support  of  the  ''repeated"  determinations 
on  this  point  the  court  gave  no  citations  of  cases. 
Moreover,  even  in  this  case  apparently  no  contention 
was  made  that  called  for  any  expression  of  view  upon 
this  point.  A  similar  dictum  is  found  in  a  Massachu- 
setts case  decided  in  1879.^  I^i  this  latter  state  the  courts 

*  Rose  water.  Special  Assessments:  A  Study  in  Municipal  Finance,  in 
Columbia  University  Studies,  11. 

^  In  re  Commissioners  of  Central  Park,  63  Barb.  (N.  Y.)  282  (1872). 

See  also  Brooklyn  Park  Commissioners  v.  Armstrong,  45  N.  Y.  234 
(1871),  where  it  was  said  that  lands  taken  for  a  public  park  "are  taken  for  a 
public  use."  This  view  was  expressed,  however,  merely  in  connection  with 
a  discussion  of  the  character  of  the  title  which  a  city  acquired  in  lands  taken 
for  park  purposes. 

^  Holt  V.  Common  Council  of  Somerville,  127  Mass.  408  (1879).  The 
dictum  ran:  "In  the  exercise  of  the  right  of  eminent  domain  the  power  to 
take  private  propertv  for  a  public  purpose  is  not  open  to  question.  There 
are  considerations  affecting  the  public  health  and  comfort  of  a  dense  popu- 
lation, which  the  Legislature  in  such  caser,  may  well  regard  as  sufficient  to 
create  a  public  necessity  .     .     .  Such  necessity  affects  a  large  portion  of 


208  CITY  PROGRESS  AND  THE  LAW 

have  gone  so  far  as  to  hold  that  a  town  may  lay  out  a 
road  across  the  private  property  of  a  person  in  order  to 
give  the  public  access  to  points  of  "pleasing  natural 
scenery,"  even  though  such  a  road  merely  made  a  cir- 
cuit from  the  regular  highway,  led  to  no  other  road  or 
landing  place,  and  gave  access  to  lands  of  no  other 
person.^  This  case,  however,  did  not  involve  any 
question  of  park  lands  and  is  of  interest  in  this  con- 
nection only  because  the  road  in  question  was  mani- 
festly for  purposes  of  recreation  rather  than  for  the 
usual  highway  purposes. 

In  Missouri  the  contention  was  made  ^  that  the  ac- 
quisition of  lands  by  a  county  for  park  purposes  was 
"clearly  not  for  a  public  use;"  but  the  situation  in  this 
case  was  peculiar.  The  county  of  St.  Louis  was  re- 
quired to  establish  a  park  in  the  vicinity  of  the  city  of 
St.  Louis,  which  was  at  that  time  a  part  of  the  county. 
The  real  objection  to  the  act  was  that  it  required  the 
county  to  pay  for  an  improvement  which  was  primarily 
for  the  benefit  of  the  city.  There  are  few,  if  any,  prin- 
ciples of  our  law  that  enable  the  courts  to  furnish  relief 
in  occasional  instances,  such  as  this,  of  apparent  in- 
justice in  the  apportionment  of  local  financial  burdens. 
The  doctrine  that  eminent  domain  can  be  employed 
only  for  a  public  purpose  Wcis  obviously  put  forward  in 
this  case  in  the  effort  to  seek  some  sort  of  principle  that 
could  be  invoked ;  and  so  the  argument  was  advanced 
"that  a  public  park  is  a  public  use  only  for  a  munici- 

the  community,  and  cannot  ordinarily  be  met  except  by  the  power  to  take 
private  property,  the  cost  of  which,  in  part,  at  least,  may  be  imposed  upon 
those  who  are  specially  benefited,  when  that  benefit  is  in  part  local." 

'  Higginson  v.  Inhabitants  of  Nahant,  93  Mass.  530  (1866). 

*St.  Louis  County  Court  v.  Griswold.  58  Mo.  175  (1874). 


MUNICIPAL  RECREATION  209 

pality  or  a  center  of  a  dense  population,  but  that  it  is 
not  demanded  for  the  people  of  a  county."  Under  these 
somewhat  unusual  circumstances,  and  in  spite  of  the 
fact  that  the  court  did  discuss  the  public  purposes  of 
parks,  this  case  should  hardly  be  cited  as  supporting  the 
view  that  the  court  was  called  upon  to  refute  the  con- 
tention that  the  establishment  of  municipal  parks  is  not 
a  public  purpose.  Incidentally  it  may  be  mentioned 
that  Forrest  Park,  over  which  this  controversy  arose, 
was,  shortly  after  this  decision,  included  within  the  city 
of  St.  Louis  and  that  there  was  a  general  adjustment  of 
obligations  between  the  city  and  the  county  upon  the 
separation  of  the  two  corporate  entities. 

It  is  quite  true  that  there  have  been  numerous  cases 
before  the  courts  involving  the  construction  of  statutes 
providing  for  the  establishment  of  parks ;  ^  but  it  seems 
reasonable  to  conclude  that  the  proposition  that  the 
establishment  of  these  primary  facilities  for  public 
recreation  has  seldom,  if  ever,  been  seriously  questioned 
on  the  ground  that  they  were  not  for  a  public  use.  Even 
playgrounds,  the  most  recent  of  our  types  of  parks, 
which  have  within  a  few  years  developed  with  astonish- 
ing rapidity  in  American  cities,  and  which  involve  cer- 
tain new  features,  such  as  the  furnishing  of  directors 
and  the  supply  of  more  or  less  elaborate  equipment, 
seem  nowhere  to  have  been  contested  before  the  courts. 
The  construction  and  maintenance  in  the  parks  of  golf 
links,  tennis  courts,  skating  rinks,  gymnasiums,  bath- 

^  See  in  addition  to  those  cited  by  United  States  Supreme  Court,  supra, 
Susanna  Root's  Case,  77  Pa.  St.  276  (1875);  People  ex  rel.  McCagg  v. 
Mayor  etc.  of  Chicago,  51  111.  17  (1869);  People  ex  rel.  Wilson  v.  Salomon, 
SI  111.  37  (1869);  Cook  V.  South  Park  Commissioners,  61  111.  115  (1871); 
Matter  of  Commissoners  of  Washington  Park  of  Albany,  fja  N.  Y.  131  (1873). 


210  CITY  PROGRESS  AND  THE  LAW 

houses,  and  fields  for  baseball  and  other  games  are  like- 
wise in  the  category  of  uncontested  activities.  In  a 
recent  New  Jersey  case  ^^  the  contention  was  made  that 
a  charter  grant  of  authority  **to  provide  for,  construct, 
regulate,  protect  and  improve  parks"  did  not  authorize 
the  city  of  Long  Branch  to  erect  a  * 'casino"  in  a  park. 
In  answer  to  this  contention  which  in  fact  went  only 
to  the  matter  of  charter  construction  and  not  to  the 
larger  question  of  public  purpose,  the  court  replied: 

We  think  these  powers  sufficient  to  include  the  power  to  improve 
newly-acquired  parks  as  well  as  parks  already  owned  by  the  city. 
It  was  rather  suggested  than  argued  that  the  statute  did  not  author- 
ize the  improvement  of  the  former  class.  The  force  of  the  argument 
was  directed  to  the  point  that  the  erection  of  a  casino  was  not  an 
improvement  of  the  park.  We  do  not  think  it  necessary  to  define 
the  word  "casino."  Obviously,  it  is  a  building  the  use  of  which  may 
vary  from  time  to  time.  It  is  enough,  for  the  present  purpose,  to  say 
that  the  proceedings  disclose  that  the  building  to  be  constructed  is 
intended  for  public  purposes,  either  for  public  amusement  or  con- 
venience. Buildings  used  for  such  purposes  are  not  uncommon  in 
public  parks,  and  serve  a  useful  purpose  not  foreign  to  the  purpose 
of  public  recreation  for  which  parks  are  meant.  Calling  it  a  "casino" 
does  not  alter  its  character.  We  think  that  such  a  building  may 
fairly  be  called  an  improvement.  Buildings  are  commonly  spoken 
of  as  improvements  to  the  land.  A  similar  opinion  was  expressed  by 
this  court  in  Knight  v.  Cape  May,  32  Vroom  149,  where  Justice  Collins 
suggested  that  the  charter  of  Cape  May  authorized  the  erection  of  a 
pavilion. 

If  it  be  conceded  that  the  furnishing  of  facilities  for 
public  recreation  in  parks  is  an  appropriate  function  of 
government,  or — to  emphasize  the  legal  point — is  a  public 
purpose,  it  is  difficult  to  see  how  a  line  of  legal  inhibition 
could  be  drawn  against  any  of  the  newer  facilities  with 

^°  Ross  V.  Long  Branch,  73  N.  J.  L.  292  (1906). 


MUNICIPAL  RECREATION  21 1 

which  parks  have  been  and  are  being  provided.  The 
extent  to  which  the  government  shall  go  in  this  direc- 
tion is  a  matter  of  policy  rather  than  of  law.^^ 

Public  hallsy  auditoriums,  opera  houses,  theaters 

Outside  of  New  England  it  is  in  comparatively  re- 
cent years  that  American  cities  have  entered  into  the 
field  of  erecting  and  maintaining  public  halls,  audi- 
toriums, or  theaters;  and  even  now  this  function  as  an 
enterprise  of  the  city  itself  is  exceptional.  In  New 
England  the  existence  of  the  town  meeting  as  a  primary 
institution  of  government  early  gave  rise  to  the  neces- 
sity for  a  hall  in  which  the  voters  might  assemble.  Not 
all  the  towns  have  found  it  necessary  to  own  and  main- 
tain halls  for  this  purpose;  but  many  of  them  have  done 
so.  Obviously,  however,  a  hall  is  needed  only  occa- 
sionally for  town-meeting  uses;  it  is  not  surprising, 
therefore,  that,  combining  thrift  with  public  spirit, 
these  towns  have  sometimes  constructed  their  halls  with 
reference  to  uses  other  than  the  now-and-then  assem- 
blages of  electors.  Nor  is  it  surprising  that  the  legal 
aspects  of  the  subject  of  town  halls  occupy  a  place  in 
the  judicial  records  of  this  section  of  the  country. 

In  Massachusetts  towns  have  since  the  year  1692  been 
empowered  to  make  appropriations  for  certain  specified 
purposes  and  for  ''other  necessary  charges."  The  mean- 

"  In  Bloomsburg  Improvement  Co.  v.  Bloomsburg,  215  Pa.  St.  452  (1906) , 
it  was  held  that  a  borough  had  no  charter  power  to  lease  from  a  private 
owner  a  pleasure  park,  containing  a  dancing  pavilion,  refreshment  booths, 
boating  facilities,  etc.,  and  to  operate  it  upon  an  admission  fee  basis.  The 
issue  was  merely  as  to  statutory  power;  but  the  court,  evidently  much 
opposed  to  the  policy  involved,  said:  "The  people  of  Bloomsburg  had  no 
need  of  such  a  place  for  the  purpose  of  good  air,  nor  for  recreation." 


212  CITY  PROGRESS  AND  THE  LAW 

ing  of  this  phrase '  'other  necessary  charges"  has  been  fre- 
quently before  the  courts  for  consideration  in  connection 
with  the  erection  of  town  halls.  ^^  j^  j^^s  been  uni- 
formly held  that  the  expenditure  of  money  for  a  town 
hall  is  a  necessary  charge  and  that  the  incidental  use  of 
such  a  hall  for  purposes  other  than  the  meetings  of  the 
voters  and  the  housing  of  town  offices  did  not  vitiate 
the  public  character  of  the  enterprise.  So  also  where  a 
town  had  accepted  land  dedicated  for  the  erection  of  a 
town  hall  it  was  held  that  the  use  of  the  hall  for  other 
purposes,  such  as  the  meetings  of  political  parties,  agri- 
cultural societies,  and  conventions  and  the  holding  of 
public  lectures  did  not  violate  the  terms  of  the  deed.^' 

In  a  Maine  case  the  court  declared  that  a  town  did 
not  exceed  its  authority  when  it  contracted  to  allow  a 
dramatic  company  to  use  its  town  hall  for  a  period  of 
six  years,  when  not  needed  for  town  purposes,  in  con- 
sideration of  expenditures  to  be  made  by  the  company 
for  improving  the  building.  ^^  And  in  Vermont  the  con- 
struction and  maintenance  of  an  opera  hall  in  connec- 
tion with  a  town  hall  was  likewise  sustained. ^^  On  the 
same  principle  school  buildings^^  and  city  halls  ^^  might 

^2  stetson  V.  Kempton,  13  Mass.  272  (1816);  Spaulding  v.  Lowell,  23 
Pick.  71  (1839);  French  v.  Quincy,  3  Allen  9  (1861);  George  v.  School  Dis- 
trict, 6  Met.  497  (1843);  Oliver  v.  Worcester,  102  Mass.  489  (1869);  Worden 
V.  New  Bedford,  131  Mass.  23  (1881);  Kingman  v.  Brockton,  153  Mass.  255 
(1891);  Commonwealth!;.  Wilder,  127  Mass.  i  (1879);  Hadsell  i;.  Hancock, 
3  Gray,  526  (1855);  Friend  v.  Gilbert,  108  Mass.  408  (1871);  Tindley  v. 
Salem,  137  Mass.  171  (1884);  Little  v.  Holyoke,  177  Mass.  114  (1900). 

13  French  v.  Inhabitants  of  Quincy,  3  Allen  (Mass.)  9  (1861). 

"Jones  V.  Inhabitants  of  Sanford,  66  Me.  585  (1877). 

1"^  Bates  V.  Bassett,  60  Vt.  530  (1888). 

1^  George  v.  School  District  in  Mendon,  6  Met.  (Mass.)  497  (1843); 
Greenbanks  v.  Boutwell,  43  Vt.  207  (1870). 

"Parker  v.  Concord,  71  N.  H.  468  (1902);  Worden  v.  New  Bedford, 
131  Mass.  23  (1881). 


MUNICIPAL  RECREATION  213 

be  erected  so  as  to  be  used  for  purposes  incidental  or 
collateral  to  their  primary  uses. 

Even  outside  of  New  England  the  courts  have 
apparently  been  disposed  to  allow  public  buildings  to 
be  constructed  for,  or  being  constructed,  to  be  used  for, 
purposes  not  related  to  their  principal  and  obviously 
governmental  use.  Thus  ih  Wisconsin  a  city  was  per- 
mitted to  lease  a  newly  erected  city  hall  for  theatrical 
performances,  concerts,  lectures,  shows,  dances,  and 
general  entertainments.^^  And  in  Missouri  a  town  was 
allowed  to  accept  a  dedication  of  land  for  the  erection 
of  a  public  building  under  the  stipulation  that  the 
building  should  contain  a  public  hall.^^  In  this  latter 
case  the  court  remarked: 

A  hall  in  which  the  trustees  might  find  it  proper  to  conduct  their 
sessions  in  public,  in  which  elections  may  be  held,  and  where  the  in- 
habitants of  the  town  may  assemble  to  consider  and  discuss  matters 
of  public  importance,  would  not,  I  conceive,  be  foreign  to  the  uses 
and  benefits  to  which  the  property  of  the  corporation  may  be  rea- 
sonably devoted.  Accommodations  of  this  character,  such  as  Inde- 
pendence  Hall  or  Faneuil  Hall,  are  so  familiarly  associated  with  the 
early  history  of  this  nation,  as  nurseries  of  its  infant  liberty,  that  I 
am  reluctant  to  believe  that,  in  the  course  of  a  century  they  have 
ceased  to  be  in  accord  with  the  life  and  weal  of  American  towns. 
Public  halls  and  popular  assemblies  are  out  of  place  only  in  govern- 
ments conducted  by  despots,  where  the  people  have  no  power  and  no 
voice.  In  a  government  where  they  have  the  right  to  assemble  for  the 
purpose  of  considering  and  discussing  their  public  affairs,  a  conven- 
ient and  commodious  hall  for  them  to  assemble  in,  is,  in  my  opinion, 
a  proper  and  necessary  want  of  the  inhabitants  of  every  town. 

While  it  is  certainly  true  that  in  many  of  these  in- 
stances, when  the  character  and  actual  uses  of  the 

18  Belle  V.  Platteville,  71  Wis.  139  (1888). 

"  Clarke  v.  Inhabitants  of  Brookfield,  81  Mo.  503  (1884). 


214  CITY  PROGRESS  AND  THE  LAW 

buildings  in  question  are  considered,  the  strictly  govern- 
mental purpose  often  seems  to  be  in  fact  incidental 
rather  than  primary,  the  courts  have  apparently  been 
reluctant  to  stand  in  the  way  of  enterprises  of  this 
kind.  In  a  Connecticut  case,  however,  a  town  was 
prevented  from  erecting  a  town  hall  where  the  principal 
part  of  the  building  was  to  be  given  over  to  stores  and 
offices  which  were  to  be  rented.^^  So  in  a  recent  Iowa 
case, 21  involving  a  question  of  statutory  power  rather 
than  of  constitutional  law,  the  court  expressed  itself  as 
follows: 

We  are  abidingly  satisfied  that  the  building,  as  planned,  is  not 
such  a  one  as  the  town  had  authority  to  build.  It  is  in  fact  an  opera 
house  with  all  the  necessary  equipment  for  such  a  building.  The 
•town  offices  and  the  place  for  the  fire  department  were  mere  inci- 
dents to  the  building.  However  desirable  it  may  be  for  rural  towns 
to  have  a  large  assembly  hall  or  opera  house,  it  is  not  within  the 
power  of  the  town  council  to  build  it.  The  officials  are  not  ordi- 
narily selected  to  manage  theaters  or  opera  houses,  and  in  view  of 
the  fact  that  when  so  managed  the  town  becomes  responsible  for 
their  care  and  safety,  and  is  liable  to  any  one  injured  by  or  through 
the  neglect  of  any  one  of  the  officials  or  employees  of  the  city,  it  is  a 
burden  which  should  not  be  assumed.  There  was  no  need  for  such  a 
building  for  municipal  purposes,  and  it  is  but  a  thin  disguise  to  cover 
a  purpose  not  authorized  by  law.  The  burdens  of  taxation  are 
heavy  enough  without  entering  upon  any  such  hazardous  enter- 
prises as  are  here  proposed.  Our  form  of  city  government  is  repre- 
sentative in  character  and  is  in  no  sense  like  the  New  England  town 
meeting.  Where  that  system  of  government  obtains  a  large  assem- 
bly hall  is  no  doubt  necessary;  but  there  is  no  occasion  for  one  where 
all  our  elections  are  by  ballot.  The  room  provided  in  this  building 
was  large  enough  for  a  county  courthouse,  and  we  find  nothing  in 
the  statutes  which  will  justify  such  a  building.    Moreover,  we  are 

20  White  V.  Stamford,  37  Conn.  578  (1871). 

^^  Brooks  V.  Town  of  Brooklyn,  146  la.  136  (1910). 


MUNICIPAL  RECREATION  215 

satisfied  that  the  real  intent  was  to  avoid  the  statutes  to  which  we 
have  referred,  and  it  is  our  duty  to  prevent  any  such  evasions. 

In  recent  years  a  number  of  cities  have  erected  or 
have  attempted  to  erect  halls,  auditoriums,  or  theaters, 
without  any  pretense  that  the  buildings  in  question 
were  to  be  used  in  part  for  strictly  governmental  pur- 
poses. In  Massachusetts,  for  example,  the  court  sus- 
tained a  statute  authorizing  a  city  to  erect  a  memorial 
hall.     The  opinion  declared  i^^ 

This  may  properly  be  deemed  to  be  a  public  purpose,  and  a 
statute  authorizing  the  raising  of  money  by  taxation  for  the  erection 
of  such  a  memorial  hall  may  be  vindicated  on  the  same  grounds  as 
statutes  authorizing  the  raising  of  money  for  monuments,  statues, 
gates  or  archways,  celebrations,  the  publication  of  town  histories, 
parks,  roads  leading  to  points  of  fine  natural  scenery,  decorations 
upon  public  buildings,  or  other  public  ornaments  or  embellishments, 
designed  merely  to  promote  the  general  welfare,  either  by  providing 
for  fresh  air  or  recreation,  or  by  educating  the  public  taste,  or  by  in- 
spiring sentiments  of  patriotism  or  for  the  memory  of  worthy  indi- 
viduals. 

So  in  a  Massachusetts  case,  ^  decided  in  1907,  it  was 
held  that  the  city  of  Lowell  could  construct  a  hall  to 
take  the  place  of  Huntington  Hall,  which  had  been  de- 
stroyed by  fire.  It  was  admitted  in  this  case  that  if 
the  project  was  colorable,  ''masking  under  the  pretext 
of  a  public  purpose  a  general  design  to  enter  into  the 
private  business  of  maintaining  a  public  hall  for  gain, 
or  devoting  it  mainly  to  any  other  than  its  public  use 
as  a  gathering  place  for  citizens  generally,  such  an 

22  Kingman  v.  Brockton,  153  Mass.  255  (1891).  It  was  held  in  this  case, 
however,  that  the  city  could  not  set  apart  a  portion  of  this  building  to  be 
used  by  a  G.  A.  R.  post  without  payment  of  compensation.  This  would  not 
be  a  public  purpose. 

23  Wheelock  v.  City  of  Lowell,  196  Mass.  220  (1907). 


2l6  CITY  PROGRESS  AND  THE  LAW 

attempt  would  be  a  perversion  of  power  and  a  nullity 
and  no  public  funds  could  be  appropriated  for  it/'  It 
was  evidently  the  view  of  the  court,  however,  that  the 
use  of  a  hall  for  "political  rallies,  conventions  and  other 
public  meetings  of  citizens"  was  ''a  strictly  public  use.'* 
Emphasis  was  laid  upon  the  fact  that  the  constitution 
guaranteed  the  right  of  assembly;  and  the  implication 
was  that  such  a  hall  merely  furnished  a  place  of  as- 
sembly. The  competence  of  the  city  to  furnish  a  place 
for  public  recreation  was  not  mentioned.  That  the 
building  might  be  let  for  private  uses,  such  as  en- 
tertainments and  amusements,  did  not  affect  its 
general  legal  purpose.  Looking  backward  the  court 
said: 

It  is  hard  to  overestimate  the  historic  significance  and  patriotic 
influence  of  the  public  meetings  held  in  all  the  towns  of  Massachu- 
setts before  and  during  the  Revolution.  No  small  part  of  the  ca- 
pacity for  honest  and  efficient  local  government  manifested  by  the 
people  of  this  Commonwealth  has  been  due  to  the  training  of  citi- 
zens in  the  forum  of  the  town  meeting.  The  jealous  care  to  reserve 
the  means  for  exercising  the  right  of  assembling  for  discussion  of 
public  topics  manifested  in  city  charters  by  the  representatives  of 
the  people,  whenever  providing  for  the  transition  from  the  town 
meeting  to  the  city  form  of  local  government,  demonstrates  that  a 
vital  appreciation  of  the  importance  of  the  opportunity  to  exercise 
the  right  still  survives.  The  practical  instruction  of  the  citizen  in  af- 
fairs of  government  through  the  instrumentality  of  public  meetings 
and  face  to  face  discussions  may  be  regarded  quite  as  important  as 
their  amusement,  edification  or  assumed  temporal  advancement  in 
ways  heretofore  expressly  authorized  by  statute  and  held  consti- 
tutional. 

In  1905  the  question  was  presented  to  the  supreme 
court  of  Colorado  whether  the  city  of  Denver  could 
erect  an  auditorium  which  was  apparently  to  be  used 


MUNICIPAL  RECREATION  217 

chiefly  as  a  theater.^^  In  sustaining  this  competence  in 
the  city  the  court  argued  that  the  existing  pubHc  build- 
ings in  Denver  were  wholly  inadequate  and  that  the 
proposed  auditorium  ought  to  provide  accommodations 
for  a  portion  of  the  public  offices  and  public  records, 
although  it  was  not  disclosed  that  such  was  in  fact  the 
intention  of  the  city.  It  was  argued  further  that  since 
Denver  had  the  power  to  frame  and  adopt  its  own 
charter  a  place  for  public  discussions  ought  to  be  pro- 
vided. Moreover  it  was  proper  that  the  city  should 
"own  a  place  where  the  public  can  witness  the  exercises 
of  commencement  day  of  the  various  high  schools  of  the 
city,"  there  being  no  hall  at  that  time  sufficiently  large  to 
accommodate  all  the  persons  desiring  to  attend  such  ex- 
ercises. For  these  reasons  the  court  concluded  that  the 
erection  of  a  municipal  auditorium  was  a  proper  munici- 
pal purpose.  Here  again,  it  will  be  noted,  the  court  was 
at  great  pains  to  locate  a  few  obviously  public  purposes 
for  which  such  an  auditorium  might  be  used.  There 
was  no  express  declaration  that  the  city  could  own  and 
manage  such  a  building  for  general  recreational  pur- 
poses. The  decision,  nevertheless,  did  enable  the  city 
to  embark  upon  an  enterprise  which  has  in  fact  been 
of  this  general  character. 

In  1908  contest  arose  in  Oklahoma  over  the  attempt 
of  the  city  of  Guthrie  to  issue  bonds  for  the  construction 
of  a  convention  hall.^^  The  court  held  that  such  a  hall 
was  a* 'public  utility"  within  the  meaning  of  that  term 
as  it  was  employed  in  the  state  constitution.     In  dem- 

**  Denver  v.  Hallett,  34  Col.  393  (1905). 

^  State  ex  rel.  Manhattan  Construction  Co.  v.  Barnes,  22  Okla.  191  (1908); 
supra,  153. 


2l8  CITY  PROGRESS  AND  THE  LAW 

onstration  of  the  "public  use"  of  a  building  of  this  kind 
the  opinion  recited : 

In  a  government  where  the  right  of  public  assembly  for  the  re- 
dress of  grievances  is  guaranteed  to  the  people,  where  the  policies  of 
government  are  in  a  great  measure  determined  at  public  gatherings 
of  the  people  in  political  conventions,  where  the  lecture  platform  has 
become  so  important  a  factor  in  public  education,  and  where  people 
frequently  assemble  for  the  purpose  of  discussing  and  devising  ways 
and  means  of  promoting  their  varied  interest,  a  place  in  large  cities 
where  such  gatherings  may  be  had  under  comfortable  hygienic  con- 
ditions is  not  only  a  public  convenience  and  benefit,  but  a  public 
necessity.  We  know  of  no  case  in  which  the  question  of  whether  a 
convention  hall  is  a  public  use  has  been  determined,  but  courthouses, 
jails,  schoolhouses,  city  halls,  public  markets,  almshouses,  public 
parks,  boulevards,  commons  or  pleasure  grounds,  and  places  of  his- 
toric interest  are  examples  of  uses  that  have  been  declared  by  the 
courts  to  be  "public  uses." 

In  1913  the  California  supreme  court  decided  that 
the  city  of  San  Francisco,  under  the  authority  granted 
by  its  charter  to  acquire  land  for  a  civic  center  and  to 
authorize  the  erection  by  a  private  company  of  "an 
opera  house,  museum,  or  other  structure,"  could  not 
enter  into  a  contract  with  a  musical  association  by  the 
terms  of  which  the  association  was  to  construct  a  mag- 
nificent opera  house  upon  ground  furnished  by  the  city. 
The  city  was  to  retain  the  naked  legal  title  to  the 
property  but  the  "beneficial  attributes  of  ownership" 
were  apparently  to  pass  to  the  association.  The  court 
seemed  to  have  the  idea  that  actual  ownership  and  con- 
trol by  the  city  itself  was  necessary  in  order  to  show  the 
public  purpose  of  a  municipal  expenditure,  although 
this  general   idea  has   been   frequently   repudiated. ^^ 

"See,  for  example,  Olcott  v.  Supervisors.  i6  Wall.  678  (1872),  where  this 
point  is  directly  discussed  and  dismissed. 


MUNICIPAL  RECREATION  219 

However,  it  was  clearly  intimated  that  if  it  had  been 
necessary  to  decide  the  point  the  court  would  have 
held  that  the  direct  ownership  and  management  of  an 
opera  house  was  a  function  appropriate  to  be  under- 
taken by  a  city.  In  this  instance  the  proposed  enter- 
prise was  interfered  with  simply  because  of  the  alliance 
which  was  attempted  to  be  made  between  the  city  and  a 
private  association. 

Quite  otherwise  was  a  decision  of  the  highest  court 
in  Louisiana  in  1842,  sustaining  the  competence  of  New 
Orleans,  to  subscribe  to  the  stock  of  a  theater  company 
which,  strange  as  the  combination  may  seem,  was  en- 
gaged chiefly  in  the  business  of  fire  and  marine  insur- 
ance.27  This  was  in  fact  prior  to  the  time  when  the 
public  purpose  rule  had  been  announced  in  its  applica- 
tion to  the  power  of  taxation.  The  court  apparently 
never  thought  of  such  a  constitutional  limitation.  "In 
relation  to  the  acquisition  and  disposition  of  property," 
it  was  said  without  a  qualm,  "this  law  confers  powers 
as  plenary,  or  nearly  so,  as  are  possessed  by  an  indi- 
vidual." To  the  mind  of  the  court  there  seemed  to  be 
nothing  extraordinary  about  that.  It  was  incidentally 
averred,  however — and  this  is  the  point  of  interest  in 
this  connection — that  "the  object  of  the  Council  in 
making  this  subscription,  is  stated  to  have  been  to  aid 
in  the  construction  of  a  large  theater  in  the  Munici- 
pality, which  would  contribute  to  its  wealth  and 
embellishment,  and  afford  a  place  of  relaxation  and 
amusement,  that  would  tend  to  correct  the  morals  and 
enlighten  the  minds  of  the  citizens."     There  was  not 

«» First  Municipality  of  New  Orleans  v.  New  Orleans  Theater  Co.,  2  Rob. 
(La.)  209  (1842). 


220  CITY  PROGRESS  AND  THE  LAW 

the  slightest  intimation  that  such  an  object  was  not 
both  laudable  and  legitimate. 

jIn  191 3  the  city  of  Toledo  attempted  by  ordinance  to 
provide  for  the  establishment  of  a  motion  picture  thea- 
ter to  be  owned  and  operated  by  the  city.^^  The  opinion 
rendered  in  this  case  was  greatly  complicated  by  reason 
of  the  recently  adopted  home  rule  provisions  of  the 
Ohio  constitution.  It  cannot  indeed  be  said  that  the 
question  whether  a  city  could  be  empowered  to  own 
and  operate  a  theater  of  this  kind  was,  as  such,  directly 
passed  upon  by  the  court.  The  ordinance  in  question 
did  not  in  any  wise  indicate  that  the  proposed  theater 
was  to  be  used  either  as  a  part  of  the  city's  educational 
work  or  of  its  recreational  facilities.  So  far  as  was  dis- 
closed upon  the  face  of  the  ordinance  the  city  may  have 
been  undertaking  this  enterprise  solely  for  profit.  There 
was  no  question  that  the  court  was  influenced  by  this 
fact.  One  of  the  judges  indeed  reached  his  conclusion 
as  to  the  invalidity  of  this  ordinance  solely  upon  this 
ground.  The  best  that  can  be  said  is  that  when  the 
several  opinions  that  were  handed  down  in  this  case 
are  carefully  analyzed  it  seems  probable  that  the 
majority  of  the  court  would  not  have  prohibited  a  city 
from  erecting  and  managing  a  motion  picture  theater 
if  it  had  been  clearly  shown  that  the  enterprise  in  ques- 
tion was  established  as  a  part  of  the  city's  educational 
or  recreational  services. 

From  this  review  of  cases  it  seems  reasonable  to  con- 
clude that  in  spite  of  the  endeavor  of  the  courts  to  sus- 
tain the  municipal  establishment  of  public  halls,  audi- 
toriums, or  theaters,  by  reference  to  certain  primary 

2  state  ex  rel.  City  of  Toledo  v.  Lynch,  88  Oh.  St.  71  (1913). 


MUNICIPAL  RECREATION  221 

uses,  or  to  some  of  the  more  obvious  public  or  govern- 
mental purposes  for  which  such  buildings  might  be 
established,  they  have  on  the  whole  been  more  liberal 
than  otherwise  in  their  attitude  toward  such  enter- 
prises. There  is  no  doubt  that  as  time  goes  on  more  and 
more  cities  will  enter  into  undertakings  of  this  kind. 
There  seems  to  be  no  reason  why  the  courts  should  not 
frankly  avow  that  a  city  may  erect  buildings  of  this 
character  under  their  general  power  to  furnish  public 
recreational  facilities.  That  a  city  should  hire  or  lease 
a  building  of  this  kind  to  private  persons  for  theatrical 
or  other  performances  or  entertainments  for  which  ad- 
mission fees  are  charged  would  seem  to  have  nothing  to 
do  with  the  legal  problem  involved.  The  city  would  go 
into  the  enterprise  because  of  its  public  character — its 
relation  to  the  subject  of  public  recreation — and  the 
publicness  of  the  enterprise  would  be  no  more  affected 
by  this  method  of  financing  it  than  is  the  public  char- 
acter of  a  waterworks  destroyed  by  reason  of  the  fact 
that  its  operation  is  financed  by  the  collection  of  fees 
from  consumers. 

Entertainments  J  celebrations,  concerts 

While  a  few  American  cities  have,  as  has  been  indi- 
cated, erected  buildings  which  are  leased  for  perfor- 
mances and  entertainments,  no  American  city  has  as  yet 
attempted  to  foster  the  dramatic  and  musical  arts  by 
furnishing  theatrical  and  operatic  performances  at  low 
cost,  after  the  manner  of  many  European  cities.  Our 
ventures  in  the  field  of  furnishing  such  facilities  for 
public  recreation  have  been  comparatively  insignificant. 
Yet  some  law  upon  the  subject  has  developed. 


222  CITY  PROGRESS  AND  THE  LAW 

Entertainments  for  the  public  must,  of  course,  be  dis- 
tinguished from  more  or  less  private  entertainments 
which  are  occasionally  given  at  public  expense.  It  is  a 
fairly  established  rule  of  law  that,  in  the  absence  at  least 
of  express  grant  of  authority,  cities  may  not  appropriate 
money  for  the  entertainment  of  distinguished  visitors. 
Thus  in  an  early  New  York  case  ^^  it  was  held  that  the 
city  of  Buffalo  had  no  power  to  provide  for  an  enter- 
tainment and  ball  given  on  Independence  Day  for  citi- 
zens and  ''certain  military  guests."  It  does  not  appear 
whether  the  public  generally  was  admitted  to  this  en- 
tertainment and  ball;  but  the  probability  is  that  they 
were  not  so  admitted.  So  in  a  later  New  York  case  ^^ 
it  was  held  that  a  village  had  no  power  to  entertain  a 
company  of  visiting  newspaper  editors.  To  the  conten- 
tion that  the  expenditure  had  ''been  repaid  by  the  effect 
on  the  village  of  subsequent  editorial  puffs,"  the  court 
replied  that  it  was  "not  proper  for  village  trustees  to  hire 
editors  to  praise  the  attractions  of  the  place ;"  and  it  was 
ironically  added  that  "if  it  had  been  shown  that  the 
editors  were  paupers,  then,  under  the  duty  of  the  village 
to  care  for  the  poor,  there  might  have  been  some  pro- 
priety in  keeping  them  from  starving."  To  the  same 
effect  was  a  Rhode  Island  case  ^^  which  prohibited  the 
city  of  Newport  from  paying  for  a  ball  and  banquet 
given  in  honor  of  certain  visiting  officers  of  the  British 
navy.  Said  the  court:  "The  city  neither  danced  at  the 
ball  nor  feasted  at  the  banquet.  It  got  nothing  substan- 
tial out  of  them.    If  the  city's  money  goes  to  pay  for 

''  Hodges  V.  City  of  Buffalo,  2  Denio  (N.  Y.)  no  (1846). 
30  Gamble  v.  Village  of  Watkins,  7  Hun.  (N.  Y.)  448  (1876). 
51  Austin  V.  Coggeshall,  12  R.  I.  329  (1879). 


MUNICIPAL  RECREATION  223 

them,  it  will  go  to  pay  for  what  the  city  neither  bar- 
gained for  nor  enjoyed.'* 

On  the  other  hand,  a  Pennsylvania  case  must,  per- 
haps, be  regarded  as  sustaining  the  contrary  view.^^ 
Under  a  general  grant  of  power  to  enact  such  ordinances 
"as  shall  be  necessary  for  the  welfare  and  comfort  of 
said  city,"  the  competence  of  the  city  of  Philadelphia  to 
appropriate  $50,000  **to  enable  the  mayor  to  extend  the 
hospitalities  of  the  city"  to  visitors  at  the  centennial  ex- 
position was  sustained.  The  court  pointed  to  the  fact 
that  appropriations  similar  to  this  had  frequently  been 
made  by  the  city  without  being  challenged.  And  while 
it  was  admitted  that  "it  does  not  profit  the  great  body  of 
the  citizens  that  a  few  persons  should  eat  and  drink  at 
their  cost,"  yet  it  could  not  be  denied,  the  court  thought, 
"that  public  entertainments,  temperately  supplied,  and 
on  occasions  of  great  public  interest,  may  produce  a 
moral  effect  in  which  all  may  share,  and  conduce  to  the 
diffusion  of  a  fraternal  feeling  in  the  country  at  large 
and  throughout  the  world." 

In  none  of  these  cases,  it  should  be  remarked, 
have  the  courts  held  that  power  to  provide  enter- 
tainments for  distinguished  visitors  could  not  be 
granted  to  a  city.  Although  the  question  of  public 
purpose  has  been  discussed,  the  point  at  issue  was 
simply  whether  any  such  power  had  in  fact  been 
granted  by  the  legislature.  It  may  be  said  in  pass- 
ing that  while  power  of  this  kind  has  seldom  been 
granted  in  express  terms,  and  while  the  general  rule 
is  that  it  may  not  be  exercised  in  the  absence  of  ex- 
press grant,  such  expenditures  have  in  fact  been  made 

'2  Tatham  v.  City  of  Philadelphia.  11  Phila..  276  (1876). 


224  CITY  PROGRESS  AND  THE  LAW 

by  cities  in  numerous  instances  that  have  not  been  con- 
tested before  the  courts. 

Practically  the  same  rule  has  been  applied  to  the 
case  of  entertainments  furnished  for  the  public  itself. 
Express  power  must  be  shown.  Thus  in  an  early 
Massachusetts  case  ^^  it  was  held  that  a  town  was  not 
authorized  to  appropriate  money  for  an  anniversary 
celebration  of  the  surrender  of  Cornwallis  at  York- 
town.  And  in  the  same  state,  as  well  as  in  Connecticut^* 
and  New  York,^^  appropriations  for  celebrations  on 
the  Fourth  of  July  have  similarly  been  interdicted 
where  no  statutory  authority  could  be  shown.  In- 
deed, in  the  earlier  cases  upon  this  subject  the  argu- 
ments of  the  court  against  such  expenditures  were  so 
broadly  expressed  that  they  seemed  not  only  to  hold 
that  power  had  not  been  granted  but  also  to  intimate 
that  such  power  could  not  be  granted.  For  example, 
the  Massachusetts  court,  discussing  in  1861  an  at- 
tempted appropriation  for  a  fireworks  display  on  In- 
dependence Day,  expressed  itself  as  follows  :^^ 

Viewed  in  the  most  favorable  light  for  the  respondents,  this  vote 
authorized  an  expenditure  of  public  money  to  celebrate  the  anniver- 
sary of  a  great  event  of  national  and  historic  interest,  in  a  manner 
which  might  serve  to  amuse  the  inhabitants,  and  perhaps  excite  in 
their  minds  a  spirit  of  patriotism  and  love  of  liberty.  But  these  ob- 
jects, however  laudable,  do  not  come  within  the  range  of  municipal 
powers  and  duties.  If  money  in  the  treasury  of  a  city  can  be  ex- 
pended to  commemorate  an  event  of  interest  and  importance  in  the 
history  of  the  country,  so  it  may  be  to  celebrate  the  anniversary  of 
any  and  every  other.     .     . 

^'  Tash  V.  Adams,  64  Mass.  252  (1852). 

^*  New  London  v.  Brainerd,  22  Conn.  552  (1853). 

36  Hodges  V.  City  of  Buffalo,  2  Denio  (N.  Y.)  no  (1846),  supra. 

3^  Hood  V.  Mayor  etc.  of  Lynn,  83  Mass.  103  (1861). 


MUNICIPAL  RECREATION  225 

Nor  would  there  be  any  limit  to  the  amount  of  money  which  might 
be  expended  for  such  purpose,  nor  to  the  mode  in  which  the  expendi- 
ture might  be  made,  except  that  which  might  be  prescribed  by  the 
will  or  caprice  of  the  majority.  If  fireworks  and  illuminations  can 
be  permitted,  so  may  dinners,  balls  and  fetes  of  every  description. 
It  is  obvious  that  such  a  power  would  open  the  door  for  great  abuses, 
and  expenditures  of  the  most  wasteful  character. 

However,  at  a  later  date,  the  same  court  did  not 
intimate  that  an  act  which  specifically  authorized 
towns  to  appropriate  money  for  the  celebration  of 
their  centennial  anniversaries  was  otherwise  than  en- 
tirely constitutional.^^  Moreover,  under  an  act  which 
had  been  passed  immediately  after  the  decision  of  the 
fireworks  case  just  mentioned  and  which  authorized 
cities  to  appropriate  limited  amounts  ''for  the  celebra- 
tion of  holidays  and  for  other  public  purposes,"  the 
court  went  so  far  as  to  hold  in  1886  that  cities  could 
make  appropriations  for  band  concerts.  ''Taking  into 
account,"  said  the  court,  "the  history  and  language  of 
the  act,  the  safeguards  attached  to  the  exercise  of  the 
power,  the  smallness  of  the  sum  allowed  to  be  ex- 
pended, and  the  fact  that  it  has  long  been  assumed  to 
be  within  the  power  of  cities  to  give  such  concerts  in 
the  open  air,  we  are  not  prepared  to  say  that  a  case  is 
presented  for  an  injunction." 

Municipal  v.  commercialized  recreation 

In  most  American  cities  of  size  there  is  some  agita- 
tion for  an  extension  of  public  recreational  services  in 
one  form  or  another.  The  use  of  school  buildings  for 
social  centers  has  become  widespread  within  a  few 

"  Hill  V.  Selectmen  of  Easthampton,  140  Mass.  381  (1886). 


226  CITY  PROGRESS  AND  THE  LAW 

years  and  is  rapidly  expanding.  The  opening  of  these 
buildings  for  such  purposes  has  given  rise  to  certain 
more  or  less  difficult  administrative  problems;  but  up 
to  the  present  time  few  if  any  important  questions  of 
law  have  been  involved.'^ 

The  prime  general  problem  of  the  American  city  in 
the  matter  of  recreation  is  the  problem  of  the  low-grade 
commercial  amusement.  For  the  most  part  this  prob- 
lem has  been  dealt  with  by  the  policy  of  regulation, 
looking  to  the  elimination  of  some  of  the  more  flagrant 
evils  and  dangers  that  attend  upon  some  of  these 
amusement  enterprises.  Perhaps  nowhere  has  this 
policy  been  wholly  satisfactory,  although  it  certainly 
is  not  without  much  to  its  credit.  The  only  apparent 
alternative  to  regulation  is  for  the  city  itself  to  furnish 
counter  attractions.  No  city  in  this  country  has  as 
yet  adopted  this  policy  to  any  considerable  extent. 
The  only  form  of  entertainment  regularly  furnished 
by  most  cities  is  the  band  concert  during  the  summer 
season — an  activity  which  in  the  vast  majority  of 
instances  has  gone  unchallenged  before  the  courts.  A 
few  cities^^  have  with  varying  success  inaugurated  mu- 
nicipal dance  halls  upon  a  limited  scale;  and  here  again, 
so  far  as  appears,  the  courts  have  not  been  requested 
to  interfere.  Band  concerts  and  municipal  dances  are, 
however,  but  scratches  upon  the  surface  of  a  big  social 
problem.  If  the  past  general  attitude  of  the  courts 
toward  the  specific  recreational  facilities  we  have  con- 

'*  In  State  ex  rel.  Gilbert  v.  Dilley,  (Neb.)  145  N.  W.  999  (1914).  the  use 
of  a  school  buiildng  for  religious  meetings  was  the  question  before  the  court. 

'*  Boston,  Cincinnati,  Cleveland,  Denver,  Milwaukee,  San  Francisco. 
See  Municipal  Dance  Halls,  Municipal  Reference  Bulletin  No.  2,  Chicago 
Public  Library,  March,  1914- 


MUNICIPAL  RECREATION  227 

sidered  may  be  taken  as  presage  of  their  future  attitude, 
it  seems  safe  to  conclude  that,  in  seeking  a  solution  of 
this  problem  by  furnishing  direct  recreational  services, 
the  city  will  not  be  greatly  impeded  by  the  barrier  of  any 
fundamental  principle  of  the  law. 


CHAPTER  IX 

PROMOTION  OF  COMMERCE  AND  INDUSTRY 

With  few  exceptions  it  is  commerce  and  industry  that 
call  cities  into  being;  but  cities  are  not  organized  for 
the  purpose  of  promoting  commerce  and  industry. 
They  are  organized  to  deal  with  many  community 
problems  that  grow  out  of  the  congestion  of  population 
which  commerce  and  industry  create.  Their  prime  pur- 
poses have  little  to  do  with  the  economic  forces  that 
govern  commercial  and  industrial  activities.  It  is 
nevertheless  manifest  that  cities  must  of  necessity 
touch  commerce  and  industry  either  directly  or  in- 
directly at  numerous  points,  and  that  it  is  within  their 
power  at  times  to  foster  or  hinder.  Indeed  there  is 
scarcely  a  function  of  the  city  which  may  not  conceiv- 
ably have  some  reflective  effect  upon  the  business  con- 
ditions of  the  community.  We  are  considering  here, 
however,  only  such  activities  as  may  be  conceived  with 
the  sole,  or  at  least  primary,  purpose  of  promoting 
the  business  prosperity  of  the  city.  And  even  from 
these  we  may  eliminate  at  this  point  those  activities, 
such  as  the  furnishing  or  regulation  of  port  and  ter- 
minal facilities,  which  have  so  important  a  bearing  upon 
the  contact  of  the  city  with  the  outside  routes  and  con- 
nections of  commerce.  These  activities  present  highly 
interesting  questions  of  policy  and  plan,  but  they  in- 
volve no  general  principles  of  law. 

In  what  ways  have  American  cities  attempted  to 


COMMERCE  AND  INDUSTRY  229 

foster  and  develop  their  commercial  and  industrial 
prosperity;  and  what  principles  of  law,  if  any,  have 
been  involved  in  those  attempts? 

Development  of  water  power 

Apart  from  supplying  or  contracting  for  the  usual 
public  utilities,  which  have  a  more  or  less  direct  effect 
on  the  commercial  and  industrial  development  of  a  city, 
and  apart  from  the  matter  of  port  and  terminal  facilities 
just  mentioned,  American  cities  have  seldom  attempted 
to  embark  in  the  direct  ownership  and  operation  of 
enterprises  specifically  designed  to  promote  commerce 
and  industry.  Upon  this  subject,  however,  there  is  at 
least  one  interesting  case  of  record.  In  1875  the  legis- 
lature of  Wisconsin  authorized  the  city  of  Eau  Claire 
to  construct  a  dam  in  the  Chippewa  river  within  the 
limits  of  the  city  and  to  lease  and  rent  the  water  power 
thus  created  for  manufacturing  purposes.  The  supreme 
court  of  the  state  held  this  act  void.  ^  It  was  conceded 
that  the  city  could  be  authorized  to  improve  the  navi- 
gation of  the  river,  but  this  was  not  the  purport  of  the 
act.  It  was  conceded  also  that  the  city  could  be  em- 
powered to  own  and  operate  a  waterworks  and  to  lease 
any  surplus  water  obtained  in  this  connection ;  but  the 
court  held  that  this  power  to  construct  a  waterworks, 
which  was  also  conferred  by  the  act,  was  wholly  separ- 
able from  the  power  to  construct  the  dam.  With  little 
or  no  discussion  of  the  specific  point,  although  a  lengthy 
opinion  was  written,  the  court  did  "not  hesitate  in 
holding,  what  was  not  questioned  at  the  bar,  that,  if  the 

1  Attorney  General  v.  City  of  Eau  Claire,  37  Wis.  400  (1875). 


230  CITY  PROGRESS  AND  THE  LAW 

statute  under  consideration  grants  power  to  the  city  to 
construct  and  maintain  the  dam,  for  the  purpose  of 
leasing  the  water  power  for  manufacturing  purposes, 
it  is  a  power  for  a  private  and  not  a  public  use,  and 
cannot  be  upheld." 

Immediately  after  the  decision  of  this  case,  the  legis- 
lature amended  the  law  in  question  so  as  to  make  the 
power  to  construct  the  dam  dependent  on  the  power 
to  construct  the  waterworks  and  so  as  to  limit  the 
power  to  lease  water  power  to  the  excess  not  required 
for  the  waterworks.  An  effort  was  made  to  have  the 
court  declare  this  amendment  colorable,  but  this  was 
without  success.2 

In  a  Texas  case  decided  in  1893' the  court  was  asked 
to  prevent  the  city  of  Austin  from  erecting  a  dam  in 
the  Colorado  river  on  the  ground  that  the  enterprise 
was  not  for  the  pretended  purpose  of  supplying  the  city 
with  water  and  electric  light  but  was  in  fact  a*  Visionary 
and  chimerical"  venture  undertaken  "to  obtain  water 
power  to  sell  or  lease  for  speculative  or  commercial 
purposes."  Private  capitalists,  so  the  allegation  ran, 
had  "refused  to  embark  their  means  in  so  reckless  a 
venture,"  and  the  scheme  was  thereafter  foisted  upon 
the  city  itself  by  certain  persons  who  "conceived  the 
idea  of  making  the  said  city  of  Austin  a  great  and  popu- 
lous commercial  and  manufacturing  center"  as  a  result 
of  this  public  work.  The  court  admitted  that  if  the 
charge  were  borne  out  "that  the  supply  of  water  and 
lights  was  a  mere  guise  and  pretense  for  constructing 
the  dam,  and  that  its  main  purpose  was  to  promote 

*  state  V.  City  of  Eau  Claire,  40  Wis.  533  (1876). 
'  City  of  Austin  v.  Nalle,  85  Tex.  520  (1893). 


COMMERCE  AND  INDUSTRY  231 

manufacturing  enterprises,"  then  "a  very  different  case'* 
would  be  presented.  But  the  court  was  of  the  opinion 
that  this  charge  had  not  been  proved,  but  that,  on  the 
contrary,  the  plans  which  were  projected  showed  "that 
the  principal  object  was  to  supply  the  city  with  water 
and  lights,"  and  that  "the  use  of  any  excess  of  power 
which  might  be  developed  was  merely  a  probable  and 
contingent  result."  ^ 

In  1885  the  question  was  presented  to  the  supreme 
court  of  Illinois  whether  the  city  of  Ottawa  was  com- 
petent to  issue  bonds  for  the  purpose  of  aiding  in  the 
development  of  water  power  for  the  benefit  of  private 
manufacturers.^  Relying  especially  upon  the  clause  of 
the  state  constitution  which  empowered  the  legislature 
to  authorize  municipal  taxes  only  for  "corporate  pur- 
poses,"^ the  court  answered: 

It  may  be,  and  probably  is  true,  that  the  contemplated  improve- 
ment of  the  water-power  on  the  Illinois  and  Fox  Rivers  in  the  city 
of  Ottawa,  if  it  had  been  judiciously  and  properly  carried  out,  might 
have  built  up  the  city,  and  added  greatly  to  its  general  growth,  wel- 
fare and  prosperity;  but  the  establishment  of  any  kind  of  manu- 
factures which  employed  capital  and  labor  within  the  city  might 
have  produced  the  same  result,  and  yet  the  city  would  have  no  power 
to  impose  taxes  to  raise  money  to  be  devoted  to  such  purposes. 
Whenever  the  tax  is  levied  to  aid  in  any  private  enterprise,  it  is  pro- 
hibited by  the  constitution,  although  the  object  may  be  one  which 
may  add  to  the  wealth  and  prosperity  of  the  city.  A  municipal  cor- 
poration cannot  incur  a  liability  and  levy  and  collect  taxes  on  the 
property  of  the  citizens  to  aid  in  the  development  of  mere  private  en- 
terprises; but  the  corporation  may  become  indebted,  for  corporate 

*  The  court  did  not  discuss  in  any  detail  whether  the  development  of 
water  power  was  or  was  not  a  public  purpose. 

^  Mather  v.  City  of  Ottawa,  114  111.  659  (1885).  See  also  on  the  subject 
of  these  bonds  Ottawa  v.  Carey,  108  U.  S.  no  (1882). 

^  Supra,  156. 


232  CITY  PROGRESS  AND  THE  LAW 

purposes,  where  the  purpose  is  one  pertaining  entirely  to  the  inter- 
est of  the  public.  Then  the  corporation  may  properly  act,  and  the 
acts  will  be  binding. 

These  few  cases  on  the  subject  of  municipal  enter- 
prise for  the  promotion  of  industry  by  developing  water 
power  are  of  interest  only  as  they  indicate  the  hesitancy 
of  the  courts  to  permit  any  extension  of  city  functions 
beyond  the  beaten  and  customary  path  of  the  usual 
utilities.  A  number  of  cities  now  sell  electric  motive 
power  to  private  industries;  but  this  service  has  crept 
in,  as  it  were,  upon  the  trail  of  the  recognized  utility 
of  lighting.  It  would  seem  that  arguments  of  much 
greater  force  could  be  made  for  the  furnishing  by  a  city 
of  power  derived  from  water,  which  would  be  merely  the 
improvement  of  a  natural  resource.  It  is  significant, 
moreover,  that  in  recent  years  the  movement  has  gained 
tremendous  headway  for  a  preservation  of  water  power 
sites  still  in  the  hands  of  the  government  and  even  for 
a  reclamation  of  sites  that  have  passed  into  private 
hands,  although  the  attempts  at  reclamation  have 
naturally  encountered  serious  obstacles.^ 

Advertising  the  city 

The  national  government,  in  addition  to  the  "regu- 
lations" that  it  has  imposed  upon  foreign  and  interstate 
commerce,  maintains  a  number  of  important  services 
in  aid  of  commerce  and  industry.  Most  of  the  states 
likewise  maintain  departments  or  bureaus  which,  pri- 
marily for  the  purpose  of  attracting  settlers,  collect, 

7  See  for  example,  The  Water  Power  Cases,  148  Wis.  124  (1912).  See 
also  Laws  of  New  York,  1915,  ch.  349,  by  which  a  very  broad  grant  of  power 
is  made  to  the  city  of  Oswego  to  develop  water  power. 


COMMERCE  AND  INDUSTRY  233 

collate,  and  disseminate  information  concerning  the 
natural  resources  and  the  industrial  and  commercial 
opportunities  of  the  state.  While  it  is  not  uncommon 
to  find  that  cities  are  empowered,  especially  under 
general  welfare  clauses,  to  enact  ordinances  in  the 
interest  of  "trade,  commerce  and  manufactures,"^  it  is 
simply  a  fact  that  few  cities  have  in  any  organized  and 
purposeful  way  undertaken  to  advance  these  interests 
generally  by  informational  and  propagandic  methods. 
Such  activities  have  been  left  almost  wholly  to  private 
initiative  through  the  medium  of  chambers  of  com- 
merce, boards  of  trade,  or  other  similar  associations — 
organizations  which  are  now  found  even  in  communities 
of  almost  negligible  size  and  importance.^ 

The  city  of  Baltimore  may  be  cited  as  an  exception  in 
this  regard.  This  city  maintains  a  regular  department 
of  government  known  as  the '  'municipal  factory  site  com- 
mission." The  functions  of  this  commission,  as  described 
in  an  official  publication  of  the  city,^^  are  as  follows: 

It  is  a  public  agency  created  for  the  purpose  of  promoting  any 
movement  that  has  for  its  end  the  development  or  enlargement  of 
Baltimore's  industrial  activities. 

It  is  a  department  of  the  city  government;  supported  by  the  city 
government.  There  are  no  charges,  costs  nor  fees  connected  with 
its  work. 

Any  service  performed  by  the  department  or  any  information 
given  by  the  department  is  absolutely  free  of  any  financial  burden 
to  the  person  who  seeks  its  aid  or  takes  advantage  of  its  co-operation. 

*  Supra,  32. 

^  In  recent  years  a  few  cities  have  indeed  capitalized  certain  strictly 
government  reforms  for  what  has  at  least  appeared  to  be  general  advertising 
purposes;  but  publicity  work  of  this  kind,  masquerading  in  missionary 
guise,  is  manifestly  in  a  somewhat  different  category. 

^°  The  Baltimore  Book,  1914,  p.  27. 


234  CITY  PROGRESS  AND  THE  LAW 

If  you  want  to  know  anything  about  the  business  possibilities  of 
Baltimore;  if  you  want  to  get  in  touch  with  the  city's  financial  in- 
terests ;  if  you  want  to  know  what  factory  sites  are  in  the  market ;  in 
fact,  if  you  want  to  know  anything  at  all  about  any  phase  of  the  in- 
dustrial affairs  of  the  city  or  any  of  the  problems  incident  thereto — 
communicate  with  the  municipal  factory  site  commission,  City  Hall. 

You  will  find  it  ready  to  give  help  in  any  particular  or  in  any  di- 
rection whatsoever. 

The  commission  is  organized  on  a  basis  that  puts  it  in  touch  with 
all  the  different  business  interests  in  Baltimore.     .     . 

The  commission  has  a  finely  developed  system  under  which  a 
wide  range  of  factory  sites  is  listed.  Real  estate  dealers,  as  well  as 
prospective  manufacturers,  are  constantly  referring  to  the  commis- 
sion's list  whenever  they  have  inquiries  for  industrial  property. 

The  city  itself  controls  about  one  hundred  and  seventy  acres  of 
waterfront  territory  with  direct  railroad  connections. 

The  commission  is  in  touch  with  a  combination  of  magnificent 
buildings  which  have  been  converted  into  "beehive  industrial  col- 
onies." All  of  the  most  modern  appliances,  power  and  other  manu- 
facturing advantages  are  readily  available  on  attractive  terms. 
These  buildings  are  situated  near  the  junction  of  two  railroads. 

The  factory  site  commission  will  put  anyone  in  touch  with  any 
of  the  above  propositions. 

The  legal  status  of  this  commission  in  Baltimore  has 
apparently  not  been  questioned  before  'the  courts. 
Indeed  it  may  be  said  generally  that  the  establishment 
and  maintenance  of  such  a  department  is  so  wholly 
unusual  among  American  cities  that  there  is  no  law 
upon  the  subject.  In  view  of  the  fact,  however,  that 
both  national  and  state  governments  operate  similar 
services,  it  is  highly  unlikely  that  the  courts,  if  called 
upon,  would  hold  that  the  expenditure  of  municipal 
funds  for  an  activity  of  this  kind  was  an  expendi- 
ture for  other  than  a  legitimate  and  useful  public 
purpose. 


COMMERCE  AND  INDUSTRY  235 

Municipal  exhibits  at  expositions 

For  many  years  it  has  been  a  common  practice  for 
states  to  make  appropriations  for  buildings  and  ex- 
hibits at  expositions,  and  frequently  also  municipalities 
have  been  granted  the  power  to  make  similar  appro- 
priations. However  extravagantly  and  inappropriately 
many  of  these  appropriations  have  been  actually  spent, 
they  must  doubtless  be  regarded  as  having  been  made 
primarily  for  the  purpose  of  advertising  the  resources 
and  business  opportunities  of  the  state  or  community. 
The  expenditure  of  public  money  for  such  purposes  has 
not  often  been  contested;  but  in  a  few  instances  at- 
tempts have  been  made  to  invoke  the  resistance  of  the 
courts.  Mention  has  already  been  made  of  the  unsuc- 
cessful effort  to  prevent  the  city  of  Philadelphia  from 
placing  $50,000  at  the  disposal  of  the  mayor  for  use  in 
entertaining  visitors  at  the  centennial  exposition  in 
i876;ii  but  this  case  involved  a  question,  of  entertain- 
ment rather  than  of  exhibit.  In  both  Kentucky  and 
California  the  courts  were  asked  to  declare  void  appro- 
priations which  were  made  by  the  state  legislatures  for 
exhibits  at  the  Columbian  exposition  held  in  Chicago 
in  1893.  Without  hesitation  the  supreme  courts  in 
these  states  declared  that  these  were  appropriations  for 
a  public  purpose.  12 

In  a  Tennessee  case,  decided  in  1896,  an  injunction 
was  asked  for  to  restrain  a  county  from  expending 
$25,000  that  had  been  appropriated  for  an  exhibit  of 
the  county's  resources  at  the  Tennessee  centennial  ex- 

^^  Supra,  223. 

"Norman  v.  Kentucky  Board,  93  Ky.  537  (1892);  Daggett  v.  Colgan, 
92  Cal.  53  (1891). 


236  CITY  PROGRESS  AND  THE  LAW 

position  held  in  that  year  at  Nashville.  ^^  The  state 
constitution  authorized  the  legislature  to  delegate  the 
taxing  power  to  municipalities  only  for  "corporate  pur- 
poses;** and  it  was  alleged  that  this  was  not  such  a 
purpose.    The  court  answered : 

To  our  minds  it  is  entirely  clear  that  an  exhibition  of  the  re- 
sources of  Shelby  County  at  the  approaching  State  Centennial  Ex- 
position is  a  county  purpose.  In  view  of  the  fact  that  the  event  to  be 
celebrated  is  one  of  no  less  note  and  importance  than  the  birth  of  a 
great  state  into  the  American  Union,  and  of  the  further  fact  that  the 
exposition  is  reasonably  expected  to  attract  great  and  favorable  at- 
tention throughout  the  country,  and  be  participated  in  and  largely 
attended  by  intelligent  and  enterprising  citizens  of  numerous  other 
states,  at  least  it  is  beyond  plausible  debate  that  such  an  exhibition 
is  well  calculated  to  advance  the  material  interests  and  promote  the 
general  welfare  of  the  people  of  the  county  making  it.  It  will  excite 
industry,  thrift,  development,  and  worthy  emulation  in  different  ave- 
nues of  commerce,  agriculture,  manufacture,  art,  and  education 
within  the  county,  thereby  tending  to  the  permanent  betterment 
and  prosperity  of  her  whole  people.  In  short,  it  will  encourage  pro- 
gress, and  progress  will  insure  increased  intelligence,  wealth,  and 
happiness  for  her  people,  individually  and  collectively.  Undeniably, 
that  which  promotes  such  an  object  and  facilitates  such  a  result  in 
any  county,  is,  to  that  county,  a  county  purpose  in  the  truest  sense. 

It  is  a  vain  impeachment  of  the  purpose  to  say  that  the  exhibition 
provided  for  is  to  be  made  beyond  the  territorial  limits  of  the  county, 
and  at  the  capital  of  the  state,  some  two  hundred  miles  away.  That 
it  should  be  made  in  the  county  is  not  essential. 

A  similar  question,  involving  an  issue  of  county  bonds 
in  the  sum  of  $100,000  for  an  exhibit  at  the  Trans- 
Mississippi  exposition  held  at  Omaha  in  1898  came 
before  the  Nebraska  supreme  court  in  that  year.^^  Said 
the  court: 

^'  Shelby  County  v.  Exposition  Co.,  96  Tenn.  653  (1896). 
"State  ex  rel.  Douglas  County  v.  Cornell,  53  Neb.  556  (1898). 


COMMERCE  AND  INDUSTRY  237 

In  the  light  of  the  principles  already  stated,  is  the  legislation, 
under  which  the  bonds  in  question  were  voted,  illegal  on  the  ground 
that  it  authorized  the  imposing  of  burdens  upon  the  public,  by  way 
of  taxation,  in  aid  of  a  private  enterprise,  and  not  in  furtherance  of 
an  object  which  is  public  in  its  character?  The  answer  must  be  in 
the  negative.  The  statute  under  review  does  not  attempt,  or  pur- 
port, to  authorize  the  issuance,  or  donation,  of  the  bonds  to  private 
individuals,  or  the  corporation  under  whose  auspices  the  exposition 
is  to  be  held.  Nor  does  the  act  contemplate  that  the  money  derived 
from  the  sale  of  the  bonds  shall  be  devoted  to  promote  the  interest 
of  a  few ;  but  the  intention  of  the  law  was  to  enable  any  county  avail- 
ing itself  of  its  provisions  to  raise  the  means  with  which  to  meet  the 
expenses  of  erecting  a  suitable  building  or  buildings,  and  maintaining 
the  same,  and  an  exhibit  of  the  resources  of  the  county  at  the  Trans- 
Mississippi  and  International  Exposition  to  be  held  in  the  city  of 
Omaha  in  1898.  The  proceeds  of  the  bonds  are  to  be  disbursed,  for 
the  purpose  mentioned  in  the  law,  by  Douglas  county,  through  its 
officers  and  agents.  We  cannot  determine  judicially  that  such  an 
object  is  purely  private,  and  not  public  in  its  character. 

Although  the  cases  on  this  subject  are  not  numerous, 
they  are  all  one  way;  and  there  are  innumerable  in- 
stances in  which  expenditures  of  this  character  have 
been  made  without  contest  before  the  courts.  It  may 
be  taken  as  settled,  therefore,  that  the  promotion  of 
commerce  and  industry,  through  the  medium  of  muni- 
cipal exhibits  at  expositions  is  a  legitimate  purpose  for 
which  public  money  may  be  spent. 

Financial  aid  to  private  enterprises 
Many  attempts  have  been  made  by  the  cities  of  this 
country  to  further  their  growth  and  foster  their  indus- 
trial and  commercial  prosperity  by  extending  financial 
aid  to  private  enterprises.  Usually  these  attempts  have 
been  in  the  form  of  a  subscription  to  the  stock  or  bonds 
of  private  corporations  or  a  loaning  the  credit  of  the 


238  CITY  PROGRESS  AND  THE  LAW 

city,  either  in  money  or  in  municipal  bonds.  Conceiv- 
ably such  action  may  be  merely  an  investment  of 
public  funds.  But  needless  to  say  the  mere  fact  that  a 
stock  or  bond  subscription  or  a  loan  is  sought  from  a 
city  is  fair  proof  of  the  speculative  character  of  the 
enterprise  involved;  for  private  capital  is  notoriously 
lynx-eyed  for  prospectively  good  investments. 

Sometimes  these  attempts  to  extend  financial  aid 
have  been  in  the  form  of  direct  donations  either  of  land, 
municipal  bonds,  or  money.  When  a  city  owns  lands 
which  have  not  been  acquired  for  any  public  purpose 
and  which  the  city  has  full  power  to  alienate  at  will,  it 
may  be  that  there  is  no  legal  way  by  which  the  city 
can  be  prevented  from  conveying  such  lands  for  a  pri- 
vate enterprise.  This  point  has  probably  never  been 
settled ;  but  the  fact  is  that  few  cities  own  any  lands  of 
this  character.  Ordinarily  a  city  would  have  to  pur- 
chase the  land  that  it  sought  to  donate,  and  this  action 
would  be  manifestly  equivalent  to  a  donation  of  money 
secured  by  taxation. 

Now  in  spite  of  the  fact  that  cities  have  no  doubt 
occasionally  given  financial  assistance  of  the  kind  here 
indicated  without  any  contest  having  been  made  before 
the  courts,  the  law  upon  this  subject  is  definitely  settled 
by  numerous  adjudications.  In  the  first  place,  let  it 
be  remarked,  the  courts  have  seldom  drawn  any  dis- 
tinction between  a  municipal  subscription  to  the  stock 
or  bonds  of  a  corporation  and  an  out  and  out  dona- 
tion. ^^  They  have  apparently  recognized  that  when  a 
city  becomes  the  purchaser  of  the  securities  of  a  private 

^^Such  a  distinction  was  applied  in  Whiting  v.  Sheboygan  &  Fond  du 
Lac  Railroad  Co.,  25  Wis.  167  (1870). 


COMMERCE  AND  INDUSTRY  239 

corporation,  the  taxing  power  must  be  exercised;  and 
the  city  must  be  fully  prepared  to  lose  the  tcix  funds 
it  has  invested.  In  determining  the  question  of  the 
power  of  a  city  it  is,  of  course,  impossible  to  await  the 
ultimate  outcome  of  a  private  business  venture  when  it 
might  perchance  be  demonstrated  that  the  exercise  of 
the  power  of  taxation  was  in  fact  but  a  temporary 
expedient,  the  funds  expended  having  been  returned  in 
the  form  of  dividends  or  of  interest  and  principal.  No 
court  has  been  more  emphatic  than  the  United  States 
Supreme  Court  in  declaring  that  from  the  viewpoint  of 
the  law  it  matters  not  whether  the  city  makes  a  dona- 
tion or  purchases  securities.  ^^  The  actual  ownership  of 
property,  whether  in  the  form  of  securities  or  otherwise, 
may  not  be  applied  as  a  test  to  determine  the  purposes 
for  which  a  city  may  levy  taxes. 

In  the  second  place,  the  rule  has  been  laid  down  that 
a  city  may  be  authorized  to  give  financial  aid  to  a  pri- 
vate person  or  corporation  only  when  the  business  of 
such  person  or  corporation  is  public  in  character.  In- 
deed, the  general  rule  that  taxes  may  be  levied  only  for 
a  public  purpose,  which  we  have  had  more  than  one 
occasion  to  mention,  was  first  laid  down  in  the  cases 
involving  municipal  aid  to  railway  corporations.  ^^  As 
a  result  of  innumerable  statutes  enacted  in  all  parts 
of  the  country  during  the  early  period  of  railway  de- 
velopment, a  large  number  of  these  cases  arose,  and  the 
rule  became  firmly  established  that  the  railway  business 
was  so  affected  with  a  public  interest  that  taxes  could 

"  Olcott  V.  Supervisors,  16  Wall.  678  (1872). 

"  McBain,  Taxation  for  a  Private  Purpose,  in  Political  Science  Quarterly, 
XXIX,  p.  185. 


240  CITY  PROGRESS  AND  THE  LAW 

be  imposed  for  the  purpose  of  assisting  persons  or  cor- 
porations engaged  in  such  business. 

The  extension  of  municipal  aid  to  railway  corpora- 
tions was  manifestly  for  the  purpose  of  promoting 
commerce,  however  imperfectly  this  purpose  may  have 
been  realized  in  actual  results;  and  the  cases  which 
apply  the  public  purpose  rule  in  this  connection  abound 
in  eloquent  discussions  concerning  the  general  pros- 
perity of  cities  in  its  relation  to  these  arteries  of  com- 
merce, as  well  as  in  discussions  of  their  public  character 
as  established  by  the  special  privileges  conferred  and 
the  special  obligations  imposed  upon  them.  As  a 
public  policy,  however,  the  promotion  of  commerce  by 
this  means  is  largely  a  matter  of  historical  interest. 
The  policy  of  giving  direct  financial  assistance  to  rail- 
ways has  long  since  given  way  to  the  policy  of  imposing 
restraints  even  upon  their  private  financial  operations. 
There  remains  to  be  considered,  however,  the  reverse 
aspect  of  the  rule — namely,  that  financial  aid  may  not 
be  extended  by  a  city  to  a  person  or  corporation  en- 
gaged in  private  business. 

In  1 87 1  the  legislature  of  the  state  of  Maine  asked 
the  supreme  court  whether  towns  could  be  authorized 
by  law  to  assist  "by  gifts  of  money  or  loans  of  bonds** 
individuals  or  corporations  engaged  in  establishing  or 
carrying  on  manufactures  of  various  kinds.  Answering 
this  question  in  the  negative, ^^  the  court  declared: 

Capital  naturally  gravitates  to  the  best  investment.  If  a  particu- 
lar place  or  a  special  kind  of  manufacture  promises  large  returns,  the 
capitalist  will  be  little  likely  to  hesitate  in  selecting  the  place  and  in 

18  Opinion  of  Justices,  58  Me.  590  (1871).  The  question  was  also  asked 
whether  towns  could  be  authorized  to  go  directly  into  the  manufacturing 
business.    Supra,  197. 


COMMERCE  AND  INDUSTRY  241 

determining  upon  the  manufacture.  But  whatever  is  done,  whether 
by  the  individual  or  the  corporation,  it  is  done  with  the  same  hope 
and  expectation  with  which  the  farmer  plows  his  fields  and  sows  his 
grain — the  anticipated  returns. 

Now  the  individual  or  corporate  manufacturing  will  in  the  outset 
promise  to  be,  and  in  the  result  will  be,  either  a  judicious  and  gainful 
undertaking,  or  an  injudicious  and  losing  one.  If  the  manufacturing 
be  gainful,  there  seems  to  be  no  public  purpose  to  be  accomplished  by 
assessing  a  tax  on  reluctant  citizens  and  coercing  its  collection  to 
swell  the  gains  of  successful  enterprise.  If  the  business  be  a  losing 
one,  it  is  not  readily  perceived  what  public  or  governmental  purpose 
is  attained  by  taxing  those  who  would  have  received  no  share  of  the 
profits,  to  pay  for  the  loss  of  an  unprosperous  manufacturer,  whether 
arising  from  folly,  incapacity,  or  other  cause.  The  tax-payer  should 
not  be  compelled  to  pay  for  the  loss  when  he  is  denied  a  share  of  the 
profit. 

In  accordance  with  the  opinion  thus  given  to  the 
legislature,  the  Maine  court  held  void  an  act  which 
empowered  a  town  to  lend  ten  thousand  dollars 
to  certain  persons  on  condition  that  they  should 
move  their  saw-mill  and  box  factory  from  its  existing 
location  in  another  town.^^  So  the  United  States  Su- 
preme Court,  in  what  is  perhaps  the  leading  case 
upon  this  subject, 20  held  void  an  issue  of  bonds 
which  had  actually  been  made  by  a  city  under  a  Kansas 
law  empowering  any  city  of  the  second  class  ''to  encour- 
age the  establishment  of  manufactories  and  such  other 
enterprises  as  may  tend  to  develop  and  improve  such 
city,  either  by  direct  appropriation  from  the  general 
fund  or  by  the  issuance  of  bonds."  Referring  to  the 
railway  aid  cases,  which  it  was  admitted  had  been 

*'  Allen  V.  Inhabitants  of  Jay,  60  Me.  124  (1872). 

2°  Loan  Association  v.  Topeka,  20  Wall.  655  (1874) ;  reaffirmed  in  Parkers- 
burg  V.  Brown,  106  U.  S.  487  (1882). 


242  CITY  PROGRESS  AND  THE  LAW 

followed  by  '  'disastrous  consequences, ' '  the  court  pointed 
to  the  fact  that  they  had  gone  no  further  than  to  hold 
that  financial  assistance  might  be  extended  to  persons 
engaged  in  business  of  a  public  character.  There  was, 
however,  "no  difficulty  in  holding"  that  the  general 
business  of  manufacturing  was  not  of  this  character. 
**If  it  be  said,"  the  court  argued,  "that  a  benefit  results 
to  the  local  public  of  a  town  by  establishing  manu- 
factories, the  same  may  be  said  of  any  other  business  or 
pursuit  which  employs  capital  or  labor.  •  The  merchant, 
the  mechanic,  the  innkeeper,  the  banker,  the  builder, 
the  steamboat  owner  are  equally  promoters  of  the 
public  good,  and  equally  deserving  the  aid  of  the  citi-. 
zens  by  forced  contributions.  No  line  can  be  drawn  in 
favor  of  the  manufacturer  which  would  not  open  the 
coffers  of  the  public  treasury  to  the  importunities  of 
two-thirds  of  the  business  men  of  the  town  or  city."^! 
In  several  other  cases,  however,  the  Supreme  Court 
modified  this  decision  to  the  extent  of  holding  that 
municipal  bonds  issued  in  aid  of  manufacturing  enter- 
prises were  valid  in  the  hands  of  bona  fide  purchasers 
provided  they  appeared  upon  their  face  to  have  been 
issued  for  a  municipal  purpose.^^ 

In  a  New  York  case  the  court  of  appeals  held  void  an 
act  which  empowered  a  village  to  subscribe  to  the  stock 
of  a  company  engaged  in  the  improvement  of  a  private 
water  privilege  on  the  Delaware  River  for  the  purpose 
of  manufacturing  lumber. ^^  The  benefit  of  such  a 
business  to  the  public,  said  the  court,  "is  remote  and 

21  See  also  Cole  v.  La  Grange  113  U.  S.  i  (1884). 

22  Hackett  v.  Ottawa,  99  U.  S.  86  (1878);  Ottawa  v.  National  Bank,  105 
U.  S.  342  (1881);  Ottawa  v.  Carey,  108  U.  S.  no  (1882). 

23  Weismer  v.  Village  of  Douglas,  64  N.  Y.  91  (1876). 


COMMERCE  AND  INDUSTRY  243 

consequential."  No  public  use  was  authorized  to  be 
made  of  the  water  power  developed  by  the  erection  of 
the  dam  in  the  river.  There  was  no  greater  public  use 
or  purpose  in  this  business  "than  is  found  in  the  setting 
on  foot  of  any  business  or  industry  in  a  community  by 
private  parties.  Any  such  enterprise  tends  indirectly 
to  the  benefit  of  every  citizen  by  the  increase  of  general 
business  activity,  the  greater  facility  of  obtaining  em- 
ployment, the  consequent  increase  of  population,  the 
enhancement  in  value  of  real  estate  and  its  readier  sale, 
and  the  multiplication  of  conveniences.  But  these  are 
not  the  direct  and  immediate  public  uses  and  purposes 
to  which  money  taken  by  tax  may  be  directed." 

So  in  a  Kansas  case  it  was  held  that  a  city  had  not 
been  and  could  not  be  empowered  to  subscribe  to  the 
stock  of  a  company  organized  "for  the  purpose  of  carry- 
ing on  the  business  of  mining  gas,  coal,  oil,  salt,  and 
other  minerals."  24  Had  the  business  been  solely  for  the 
purpose  of  supplying  the  utility  of  natural  gas,  perhaps 
this  action  might  have  been  sustained  under  the  doc- 
trine of  the  railway-aid  cases;  but  "the  main  purpose 
of  the  corporation"  appeared  to  be  "to  produce  minerals 
for  sale  on  the  market  for  profit."  This  was  a  private 
business  venture  for  which  cities  were  not  organized. 

Not  even  where  extraordinary  calamities  fall  upon 
private  business  within  a  city  may  the  municipality  be 
authorized  to  extend  financial  aid  in  the  form  of  loans 
or  gifts  to  strictly  private  enterprises  with  a  view  to 
reviving  trade  and  commerce.  In  1872  a  devastating 
fire  swept  the  city  of  Boston,  causing  great  loss  of  prop- 
erty and  a  partial  paralysis  of  normal  industry.    The 

^  City  of  Geneseo  v.  Natural  Gas  etc.  Co.,  55  Kan.  358  (1895). 


244  CITY  PROGRESS  AND  THE  LAW 

legislature  by  statute  authorized  the  city  to  issue  bonds 
to  obtain  a  sum  to  be  loaned  to  private  persons  for 
assistance  in  rebuilding  the  burned  district.  Brought 
to  the  bar  of  the  state  supreme  court,  this  action  was 
declared  void.^^     The  court  said : 

There  is  no  public  use  or  public  service  declared  in  the  statute 
now  under  consideration,  and  we  are  of  opinion  that  none  can  be 
found  in  the  purposes  of  its  provisions.  By  its  terms  the  proceeds  of 
the  bonds,  thereby  authorized,  are  to  be  expended  in  loans  to  per- 
sons who  are  or  may  become  owners  of  land  in  Boston,  "the  buildings 
upon  which  were  burned  by  the  fire  in  said  Boston  on  the  ninth  and 
tenth  days  of  November,"  1872.  The  ultimate  end  and  object  of 
the  expenditure,  as  indicated  by  the  provisions  of  the  statute  itself, 
is  "to  insure  the  speedy  rebuilding  on  said  land." 

The  general  result  may  indeed  be  thus  stated  collectively,  as  a 
single  object  of  attainment;  but  the  fund  raised  is  intended  to  be 
appropriated  distributively,  by  separate  loans  to  numerous  indi- 
viduals, each  one  of  which  will  be  independent  of  any  relation  to  the 
others,  or  to  any  general  purpose,  except  that  of  aiding  individual 
enterprise  in  matters  of  private  business.  The  property  thus  cre- 
ated will  remain  exclusively  private  property,  to  be  devoted  to 
private  uses  at  the  discretion  of  the  owners  of  the  land  with  no  re- 
striction as  to  the  character  of  the  buildings  to  be  erected,  or  the 
uses  to  which  they  shall  be  devoted;  and  with  no  obligation  to 
render  any  service  or  duty  to  the  Commonwealth,  or  to  the  city — 
except  to  repay  the  loan — or  to  the  community  at  large  or  any  part 
of  it.  If  it  be  assumed  that  the  private  interests  of  the  owners  will 
lead  them  to  re-establish  warehouses,  shops,  manufactories,  and 
stores;  and  that  the  trade  and  business  of  the  place  will  be  enlarged 
or  revived  by  means  of  the  facilities  thus  provided;  still  these  are 
considerations  of  private  interest,  and,  if  expressly  declared  to  be  the 
aim  and  purpose  of  the  act,  they  would  not  constitute  a  public 
object,  in  a  legal  sense. 

As  a  judicial  question  the  case  is  not  changed  by  the  magnitude 
of  the  calamity  which  has  created  the  emergency;  or  the  extent  and 

2' Lowell  V.  City  of  Boston,  iii  Mass.  454  (1873). 


COMMERCE  AND  INDUSTRY  245 

importance  of  the  interests  to  be  promoted.  These  are  considera- 
tions affecting  only  the  propriety  and  expediency  of  the  expenditure 
as  a  legislative  question.  If  the  expenditure  is,  in  its  nature,  such  as 
will  justify  taxation  under  any  state  of  circumstances,  it  belongs  to 
the  Legislature  exclusively  to  determine  whether  it  shall  be  author- 
ized in  the  particular  case;  and  however  slight  the  emergency,  or 
limited  or  unimportant  the  interests  to  be  promoted  thereby,  the 
court  has  no  authority  to  revise  the  legislative  action. 

On  the  other  hand,  if  its  nature  is  such  as  not  to  justify  taxation 
in  any  and  all  cases  in  which  the  Legislature  might  see  fit  to  give 
authority  therefor,  no  stress  of  circumstances  affecting  the  expedi- 
ency, importance  or  general  desirableness  of  the  measure,  and  no 
concurrence  of  legislative  and  municipal  action,  or  preponderance  of 
popular  favor  in  any  particular  case,  will  supply  the  element  neces- 
sary to  bring  it  within  the  scope  of  legislative  power. 

A  similar  attempt  by  the  city  of  Charleston  following 
a  ruinous  fire  in  1866,  in  which  all  the  buildings  in  a 
very  large  portion  of  the  city  were  destroyed,  was  inter- 
dicted by  the  highest  court  of  South  Carolina.^^  In 
this  case  the  fire  loan  bonds  had  actually  been  issued 
by  the  city  and  many  of  them,  without  being  questioned 
as  to  their  validity,  had  passed  into  the  hands  of  inno- 
cent purchasers.  Indeed,  it  was  about  fourteen  years 
after  their  issuance  that  the  court  declared  these  bonds 
void.    The  opinion  recited: 

The  real  object  was  to  loan  the  credit  of  the  city  to  private  indi- 
viduals to  afford  them  aid  in  repairing  their  losses  occasioned  by  a 
disastrous  fire.  It  was  practically  nothing  more  nor  less  than  lend- 
ing the  credit  and  funds  of  the  city  to  private  individuals  to  aid  them 
in  building  on  their  own  lots  dwellings,  stores,  warehouses,  or  such 
other  structures  as  their  interest  or  convenience  might  prompt,  for 
their  own  individual  use,  and  to  promote  their  own  individual  com- 
fort or  gain.    There  was  nothing  whatever  in  it  of  a  public  nature. 

*•  Feldman  &  Co.  v.  City  Council  of  Charleston,  23  S.  C.  57  (1884). 


246  CITY  PROGRESS  AND  THE  LAW 

The  public  were  not  to  have  any  interest  in,  or  control  over,  the 
structures  which  were  thus  to  be  erected  by  the  aid  of  the  public 
funds,  but  they  were  for  the  sole  use,  and  under  the  exclusive  con- 
trol, of  the  individual  owners,  precisely  like  any  other  private  prop- 
erty owned  by  any  other  private  individual  residing  or  owning  prop- 
erty in  the  city. 

We  cannot  conceive  how  it  is  possible  to  invest  the  manifest  pur- 
pose of  this  loan  on  the  part  of  the  city  with  a  public  character.  It 
is  true  that  there  would  be  incidental  advantages  accruing  to  the 
city  by  the  increase  of  its  taxable  values,  and  in  various  other  ways 
that  might  be  suggested,  but  these  are  mere  incidental  advantages 
which  attend  any  improvements  made  in  a  city,  even  where  they 
are  exclusively  the  work  of  private  individuals,  made  with  their  own 
private  funds,  and  cannot,  therefore,  have  the  effect  of  converting 
the  purpose  from  a  private  into  a  public  purpose. 

The  legislation  under  review  in  this  case  was  dis- 
tinguished from  the  legislation  authorizing  aid  to  rail- 
ways on  the  ground  that  railroads  even  though  pri- 
vately owned,  were  * 'public  highways,"  were  granted 
the  power  of  eminent  domain,  and  as  common  car- 
riers were  required  to  operate  under  such  regula- 
tions as  might  be  prescribed  by  the  government. 
None  of  these  factors  existed  to  render  public  in  char- 
acter the  business  of  those  whose  property  had  been 
destroyed  by  fire. 

Of  somewhat  the  same  purport  was  a  Kansas  decision 
which  held  void  a  law  authorizing  the  issuance  of  town- 
ship bonds,  following  a  wide-spread  failure  of  crops  in 
the  state,  **for  the  purpose  of  providing  the  citizens  of 
such  townships  with  provisions  and  with  grain  for  seed 
and  feed.""  In  this  case  the  court  was  at  pains  to  point 
out  that  the  act  could  not  be  sustained  as  a  measure 

27  State  ex  rel.  Griffith  v.  Osawkee  Township,  14  Kan.  418  (1875)- 


COMMERCE  AND  INDUSTRY  247 

for  the  relief  of  the  poor,  which  was  conceded  to  be 
"among  the  unquestioned  objects  of  public  duty."  But 
"the  obligation  of  the  state"  in  this  regard  "is  limited  to 
those  unable  to  help  themselves."  In  this  instance  "it  is 
not  the  helpless  and  dependent,  whose  wants  are  alone 
sought  to  be  relieved."  The  act  "contemplates  a  class 
who  have  fields  to  till  and  stock  to  care  for,  and  pur- 
poses to  help  them  with  seed  for  their  fields  and  grain 
for  their  stock,  that  then  they  may  pursue  with  better 
prospects  of  success  their  ordinary  avocations.  It  taxes 
the  whole  community  to  assist  one  class,  and  that  not 
for  the  purpose  of  relieving  actual  want,  but  to  assist 
them  in  their  regular  occupations."  This  was  further 
evidenced  by  the  fact  that  the  statute  provided  that 
assistance  should  be  extended  only  through  the  medium 
of  loans,  which  loans  were  to  be  secured  by  mortgage 
notes  upon  the  real  and  personal  property  of  the  bor- 
rowers. Surely  such  borrowers  could  not  be  regarded 
as  paupers. 

Nor  could  the  act  be  sustained  as  a  measure  to  prevent 
pauperism  and  destitution,  although  the  argument  on 
this  score  was  admitted  to  be  strong.  ' '  Let  the  doorways 
of  taxation  be  opened,"  said  the  court,  "not  merely  to 
the  relief  of  present  and  actual  distress,  but  in  antici- 
pation of  and  to  guard  against  future  want,  and  who 
can  declare  the  result?  How  certain  must  be  the  ex- 
pectation of  want?  How  nigh  its  approach?  What 
efforts  must  the  individual  make  to  ward  it  off?  May 
he  do  nothing,  and  demand  that  the  public  make  pro- 
vision to  guard  against  the  possibility  of  future  suffer- 
ing? Must  wide-spread  and  general  calamity  precede 
the  granting  of  such  anticipatory  relief,  or  is  it  enough 


248  CITY  PROGRESS  AND  THE  LAW 

that  individual  misfortune  or  indolence  render  probable 
the  approach  of  want?"  The  mere  mention  of  these 
questions,  the  court  thought,  was  sufficient  to  suggest 
"the  dangers  which  would  follow  the  adoption  of  this 
as  a  rule  of  public  conduct." 

To  many  minds  it  may  appear  that  the  extension  of 
financial  assistance  to  private  industry  by  the  govern- 
ment of  a  city  in  time  of  serious  calamity  has  in  point 
of  fact  quite  as  large  elements  of  public  purpose  as  has 
the  lending  or  giving  of  government  aid  to  a  railway  or 
other  utility  corporation.  The  risk  of  public  funds  is 
certainly  no  greater  in  the  one  case  than  in  the  other. 
Our  national  government  has  in  times  past  practically 
given  away  large  portions  of  the  public  domain  to  en- 
courage settlement  and  thereby  to  foster  individual 
economy;  and  there  is  surely  no  large  difference  be- 
tween taxation  itself  and  the  alienation  of  a  public 
economic  value  that  might  some  day  produce  revenue 
in  lieu  of  taxation.  We  have  given  ship  subsidies  for 
the  upbuilding  of  a  merchant  marine;  and  while  as  a 
policy  these  subsidies  have  been  widely  debated,  few 
have  been  heard  to  contend  that  they  were  illegal  on 
the  ground  of  their  being  for  a  non-public  purpose. 
The  recent  rural  credits  law  carried  with  it  an  appropri- 
ation of  national  funds  for  the  establishment  of  banks 
to  make  loans  to  farmers;  and  while  these  banks  may 
become  self-sustaining,  the  funds  so  appropriated  may, 
on  the  contrary,  be  lost.  The  rule  that  taxes  may  not 
be  imposed  for  a  private  purpose  has  probably  never 
been  applied  to  an  act  of  Congress.  Apparently,  how- 
ever, it  is  a  general  rule  of  our  constitutional  law;  as 
such  it  is  just  as  appropriately  applicable  to  a  law  of 


COMMERCE  AND  INDUSTRY  249 

Congress  as  to  the  action  of  a  city  taken  under  due 
authorization  from  the  state. ^^ 

But  in  the  case  of  cities  the  courts  have,  so  far  as  their 
adjudications  go,  elected  to  assert  that  the  financial  aid 
of  the  government  may  be  extended  only  to  those 
businesses  that  are  included  within  the  commonly  ac- 
cepted meaning  of  the  term  public  utility.  ^^  Perhaps  in 
the  long  run,  when  the  sometime  prodigality  and  reck- 
lessness of  our  quickly  changing  municipal  adminis- 
trations are  considered,  the  restrictive  hand  of  the 
courts  in  this  respect  may  be  regarded  as  unqualifiedly 
beneficent.  It  might  have  been  even  more  beneficent  if 
the  opening  of  public  fiscs  to  the  railways  had  also  been 
prevented  at  the  period  when  that  practice  was  in 
vogue.  From  the  viewpoint  of  the  general  public  wel- 
fare, however,  it  is  not  easy  to  see  that  the  building  of  a 
railway  is  of  greater  public  benefit  than  the  rebuilding 
of  a  fire-ruined  city  or  the  rehabilitation  of  a  farming 
community  struggling  out  of  a  wide-spread  failure  of 
crops.  That  a  railway  must  be  granted  the  power  of 
eminent  domain  may  be  an  argument  in  support  of  the 
authority  of  the  government  to  regulate;  but,  being  in 
itself  a  special  public  grant,  this  power  is  certainly  a 
small  argument  in  support  of  authority  to  make  an 
additional  public  grant — a  grant  of  public  funds.  That 
the  power  to  regulate  the  railway  justifies  this  additional 
grant  may  seem  plausible ;  but  the  fact  is  that  railways 

28  The  courts  have  in  fact  never  referred  this  rule  to  any  specific  pro- 
vision of  a  state  or  the  national  constitution.  McBain,  Taxation  for  a 
Private  Purpose,  in  Political  Science  Quarterly,  XXIX,  p.  185. 

^  Logically,  if  called  upon,  the  United  States  Supreme  Court  would  be 
compelled  to  sanction  a  municipal  donation  to  the  owners  of  grain  elevators 
{supra,  186);  the  Maine  court,  to  the  operators  of  fuel  yards  (supra,  196); 
and  the  Georgia  court,  to  manufacturers  of  ice  (supra,  I99). 


250  CITY  PROGRESS  AND  THE  LAW 

were  given  public  aid  at  a  time  when  they  were  sub- 
jected to  an  almost  absurd  minimum  of  public  regula- 
tion. In  the  development  of  governmental  regulation 
of  railways  in  the  United  States  the  gifts  of  the  govern- 
ment to  them  or  the  purchase  of  their  securities  by  the 
government  has  exerted  an  entirely  negligible  influence. 
It  has  already  been  pointed  out  as  open  to  grave 
question  whether  in  its  historical  aspect  the  power  of 
the  government  to  regulate  business  can  properly  be 
ascribed  to  the  modern  distinction  between  public  and 
private  business. ^^  If  this  distinction  could  be  discarded 
so  far  as  the  power  of  regulation  is  concerned,  there 
would  be  destroyed  the  only  prop  upon  which  has  been 
rested  the  competence  of  the  government  to  lend 
financial  aid  to  private  persons  and  corporations.  In 
view  of  the  profits  to  private  capital  that  have  accrued 
from  public  utility  enterprises  it  is  no  longer  conceiv- 
able that  cities  would,  except  perhaps  in  some  unusual 
circumstance,  come  forward  with  direct  financial  assist- 
ance. Moreover,  except  in  small  communities  or  in 
time  of  public  calamity,  cities  have  abandoned  the 
notion  of  erecting  their  industrial  and  commercial  pros- 
perity upon  the  uncertain  foundation  of  direct  financial 
aid  to  private  enterprise.  Whether  this  idea  may  for 
one  reason  or  another  be  revived  at  some  future  time, 
remains  to  be  seen.  For  the  present  both  the  law,  as 
it  has  been  expounded,  and  the  practice,  as  it  has 
evolved,  stand  inexorably  in  the  way. 

*°  Supra,  179. 


TABLE  OF  CASES 

AlbanyStreet,  7nre,  II  Wend.  (N.  Y.)  149 I33 

Allen  V.  Inhabitants  of  Jay,  60  Me.  124      241 

Andrews  v.  South  Haven,  187  Mich.  294 56 

Ardmore  v.  State  ex  rel.,  24  Okla.  862 153 

Atlantic  City  v.  France,  75  N.  J.  L.  910 73 

Attorney  General  v.  Detroit,  150  Mich.  310 54 

Attorney  General  v.  Detroit,  164  Mich.  369 159 

Attorney  General  v.  Eau  Claire,  37  Wis.  400 229 

Attorney  General  v.  Lindsay,  178  Mich.  524      159 

Attorney  General  v.  McGuinness,  78  N.  J.  L.  346 9 

Attorney  General  v.  Williams,  174  Mass.  476.  91,  94,  107,  142,  151 

Attorney  General  v.  Williams,  178  Mass.  330 94 

Austin  V.  Coggeshall,  12  R.  I.  329 222 

Austin  V.  Nalle,  85  Tex.  520      230 

Baltimore  v.  Clunet,  23  Md.  449 133 

Barbierj;.  Connolly,  113  U.  S.  27 lOi 

Barnes  v.  Hill,  23  Okla.,  207      153 

Bates  V.  Bassett,  60  Vt.  530  .    . 212 

Belle  V.  Platteville,  71  Wis.  139 213 

Bennett  v.  Boyle,  40  Barb.  (N.  Y.)  551 133 

Bill  Posting  Co.  v.  Atlantic  City,  71  N.  J.  L.  72 77 

Blanchard  v.  Benton,  109  III.  App.  569 49 

Bloomsburg  Imp.  Co.  v.  Bloomsburg,  215  Pa.  St.  452  .    .    .  41,  211 

Boerth  v.  Detroit  City  Gas  Co.,  152  Mich.  654 42 

Bostock  t;.  Sams,  95  Md.  400 115 

Boulat  V.  Municipality  No.  One,  5  La.  Ann.  363 132 

Bowers  v.  Indianapolis,  (Ind.)  81  N.  E.  1097 75 

Bradley  v.  District  of  Columbia,  20  App.  D.  C.  169     ....  75 

Brooklyn,  In  re,  143  N.  Y.  596 170 

Brooklyn  v.  Nassau  El.  R.  R.  Co.,  44  N.  Y.  App.  Div.  462.   71,  74,  75 
Brooklyn  Park  Commissioners  v.  Armstrong,  45  N.  Y.  234.     206,  207 

Brooks  V.  Town  of  Brooklyn,  146  la.  136 214 


252  TABLE  OF  CASES 

Bryan  v.  Chester,  212  Pa.  St.  259 78 

Budd  V.  New  York,  143  U.  S.  517 179,  185,  186 

Byrne  v.  Maryland  Realty  Co.,  (Md.)  98  Atl.  547 115 

Cary  v.  Blodgett,  10  Cal.  App.  463 50 

Champaign  v,  Harmon,  98  111.  491 150 

Charles  Riyer  Bridge  v.  Warren  Bridge,  11  Peters  420    ...     164 

Chestnut  Street, /«  re,  118  Pa.  St.  593 113 

Chicago  V.  Gunning  System,  214  111.  628 78,  84 

Chicago  t;.  KnoJDel,  232  111.  112 74 

Chicago  V.  Stratton,  (111.)  44  N.  E.  853 98 

Chicago  B.  &,  Q.  R.  Co.  v.  Chicago,  166  U.  S.  226 125 

Chicago  B.  &  Q.  R.  Co.  v.  People  ex  rel.,  200  U.  S.  561  ....  62 
Chicago  Union  Traction  Co.  v.  Chicago,  199  111.  484    ....       43 

Christensen  v.  Fremont,  45  Neb.  160 49 

Churchill  v.  Collector  of  Int.  Rev.,  14  Off.  Gazette  of  Philip- 
pines, 283 89 

City  of,  see  name  of  city 

Clark  V.  Nash,  198  U.  S.  361 127 

Clark  t>.  Los  Angeles,  160  Cal.  30 50 

Clarke  v.  Brookfield,  81  Mo.  503 213 

Cleveland  v.  Railway  Co,,  201  U.  S.  529 42 

Cochran  z;.  Preston,  iq8  Md.  220 91,96,107 

Coldwater  v.  Tucker,  36  Mich.  474      52 

Cole  t».  La  Grange,  113  U.  S.I 242 

Coleman  v.  Frame,  26  Okla.  193 153 

Commissioners  of  Central  Park,  In  re,  63  Barb.  (N.  Y.)  282.  206,  207 
Commissionersof  Washington  Park, /w  re,  52  N.  Y.  131  .  .  209 
Commonwealth  v.  Boston  Adv.  Co.,  188  Mass.  348  ....     77,  94 

Commonwealth  2^.,  Wilder,  127  Mass.  I 212 

Converse  v.  Fort  Scott,  92  U.  S.  503 38 

Cook  i;.  South  Park  Commissioners,  61  111.  115 209 

Crawford  v.  Topeka,  51  Kan.  756 78,  79 

Crawfordsville  v.  Braden,  130  Ind.  149 50,  51 

Cream  City  Bill  Posting  Co.  v.  Milwaukee,  158  Wis.  86      .    .       83 

Cronin  v.  People,  82  N.  Y.  318 98 

Crouch  V.  McKinney,  (Tex.)  104  S.  W.  518 50 

Currau  Bill  Posting  etc.  Co.  v.  Denver,  47  Col.  221      ....       80 


TABLE  OF  CASES  253 

Curtis  V.  Los  Angeles,  (Cal.)  156  Pac.  462      100 

Cusack  Co.  V.  Chicago,  (111.)  108  N.  E.  340   ........    .       83 

Cusack  Co.  V.  Chicago,  242  U.  S.  526 85,  113 

Daggett  V.  Colgan,  92  Cal.  53 235 

Davis  V.  Anita,  73  la.  325      40 

Davis  &  Bro.  v.  Woolnough,  9  la.  104 25 

Denver  ir.  Hallett,  34  Col.  393  . 217 

Denver  v.  Rogers,  46  Col.  479 105 

Department  of  Health  of  New  York  v.  Ebling  Brewing  Co., 

78  N.  Y.  Supp.  II 72,  75 

Detroit  v.  Railway  Co.,  184  U.  S.  368 42 

Detroit  Citizens'  Str.  Ry.  Co.  v.  Detroit,  no  Mich.  384     .    .       42 
Detroit  Citizens'  Str.  Ry.  Co.  v.  Detroit  Ry.,  171  U.  S.  48.    42,  164 

Dexheimer  V.  Orange,  60  N.  J.  L.  in      9 

Donable's  Administrator  v.  Harrisonburg,  104  Va.  533    ...       54 
Duke  Bond  v.  Mayor  etc.  of  Baltimore,  116  Md.  683  ....     139 

Duncan  v.  Lynchburg,  (Va.)  34  S.  E.  964 54 

Dunkinw.  Blust,  (Neb.)  119N.  W.  8 40 

Dunn  V.  Charleston,  Harper's  Law  (S.  C.)  189 132,  133 

Dyer  v.  Newport,  123  Ky.  203      53 

Elliott  f.  Detroit,  121  Mich.  611 28 

Embury  r.  Connor,  3  N.  Y.  511 133 

Erie  R.  Co.  v.  Mayor  etc.  of  Jersey  City,  (N.  J.)  84  Atl.  697.  71,  73 

Ellinwood  v.  Reedsburg,  91  Wis.  131 45 

Eubank  z;.  Richmond,  226  U.  S.  137 86,  III 

Ex  parte,  see  name  following 

Farwell  v.  Seattle,  43  Wash.  141       53 

Fawcett  v.  Mt.  Airy,  134  N.  C.  125 46,  50 

Feldman  &  Co.  v.  Charleston,  23  S.  C.  57 245 

First  Municipality  of  New  Orleans  v.  McDonough,  2  Rob. 

(La.)  244 150 

First  Municipality  of  New  Orleans  v.  New  Orleans  Theatre 

Co.,  2  Rob.  (La.)  209 219 

Foster  v.  Boston  Park  Commissioners,  131  Mass.  225  ....  206 

Foster  v.  Boston  Park  Commissioners,  133  Mass.  321  .    .    .    .  206 


254  TABLE  OF  CASES 

French  v.  Quincy,  3  Allen  (Mass.)  9 212 

Friend  v.  Gilbert,  108  Mass.  408 212 

Fruth  v.  Board  of  Affairs,  75  W.  Va.  456 in 

Gamble  v.  Village  of  Watkins,  7  Hun  (N.  Y.)  44.8 222 

Gelpke  v.  Dubuque,  i  Wall.  175 38 

Geneseo  v.  Geneseo  Natural  Gas  etc.  Co.,  55  Kan.  358    .    .    .  243 

George  v.  School  District  of  Mendon,  6  Met.  (Mass.)  497  .    .  212 

Glucose  Refining  Co.  v.  Chicago,  138  Fed.  209 72 

Greenbanks  v.  Boutwell,  43  Vt.  207 212 

Greenville  v.  Greenville  Water  Works  Co.,  125  Ala.  625      .    .  41 

Groner  v.  Portsmouth,  77  Va.  488 33 

Gunning  System  v.  Buffalo,  75  N.  Y.  App.  Div.  31 80 

Hadacheck,  Ex  parte,  165  Cal.  416 102,  103 

Hadacheck  v.  Sebastian,  239  U.  S.  394 103,  105 

Hadsell  v.  Hancock,  3  Gray  (Mass.)  526 212 

Haller  Sign  Works  v.  Training  School,  249  111.  436   ....     78,  84 

Hamilton  Gas  etc.  Co.  v.  Hamilton,  146  U.  S.  258 166 

Harmon  i;.  Chicago,  no  111.  400 72,75 

Hackett  v.  Ottawa,  99  U.  S.  86 242 

Hayward  v.  Red  Cliff,  20  Col.  33 150 

Haywood  v.  Mayor  etc.  of  Savannah,  12  Ga.  404 9 

Heilbron  v.  Mayor  etc.  of  Cuthbert,  96  Ga.  312 45 

Helena  Waterworks  Co.  v.  Helena,  195  U.  S.  383 166 

Henderson  w.  Young,  119  Ky.  224 52 

Hetherington  v.  Bissell,  10  la.  145 25 

Higginson  v.  Inhabitants  of  Nahant,  93  Mass.  530 208 

Hill  V.  Selectmen  of  Easthampton,  140  Mass.  381 225 

Hill  V.  Memphis,  134  U.  S.  198 39 

Hodges  t;.  Buffalo,  2  Denio  (N.Y.)  no 222,224 

Holt  V.  Somerville,  127  Mass.  408 206,  207 

Holton  V,  Camilla,  134  Ga.  560 199 

Hood  V.  Mayor  etc.  of  Lynn,  83  Mass.  103 224 

Horton  v.  Old  Colony  Bill  Posting  Co.,  (R.  I.)  90  Atl.  822  .    .       83 

Howell  V.  Millville,  60  N.  J.  L.  95 48 

Hudson  Water  Co.  v.  McCarter,  209  U.  S.  349 95 

Huesing  v.  Rock  Island,  128  111.  465 48 


TABLE  OF  CASES  255 

Hunnicutt  v.  Atlanta,  104  Ga.  i 150 

Hyatt  V.  Williams,  148  Cal.  585   •   • 50 

Illinois  Trust  etc.  Bank  v.  Arkansas  City,  76  Fed.  271     ...  42 

Indianapolis  v.  Consumers  Gas  etc.  Co.,  140  Ind.  107      ...  42 

Indianapolis  v.  Gas-Light  &  Coke  Co.,  66  Ind.  396 42 

In  re,  see  name  following 

Intendant  etc.  of  Livingston  v.  Pippin,  31  Ala.  542  ....     36,  44 

Interstate  Commerce  Com.  v.  Railway  Co.,  167  U.  S.  479  .    .  42 
In  the  matter  of,  see  name  following 

Jacksonville  Electric  Light  Co.  v.  Jacksonville,  36  Fla.  229    .  50 

Jones  V.  Inhabitants  of  Sanford,  66  Me.  585 212 

Joplin  V.  Southwest  Mo.  Light  Co.,  191  U.  S.  150 166 

Kansas  City  Gunning  Adv.  Co.  v.  Kansas  City,  240  Mo.  659  82 

Keen  v.  Mayor  etc.  of  Waycross,  loi  Ga.  588 56 

Kelso,  In  re,  147  Cal.  609 103 

Kerr  v.  South  Park  Commissioners,  117  U.  S.  379 206 

Kingman  v.  Brockton,  153  Mass.  255      212,  215 

Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  22    ....     165,  166 

Ladd  V.  Jones,  61  111.  App.  584 49 

Laughlin  v.  Portland,  1 1 1  Me.  486 196 

Libby  v.  Portland,  105  Me.  370 150 

Little  i;.  Holyoke,  177  Mass.  114 '. 212 

Loan  Association  v.  Topeka,  20  Wall.  655 241 

Lochner  v.  New  York,  198  U.  S.  45 183 

Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  685      .  171 

Lowell  V.  Boston,  1 1 1  Mass.  454 244 

McBean  v.  Fresno,  112  Cal.  159 46 

McCulloch  V.  Maryland,  4  Wheat.  316 33 

Mcintosh  V.  Johnson,  211  N.  Y.  265 98 

Madera  Waterworks  v.  Madera,  228  U.  S.  454 166 

Madison  Traction  Co.  v.  St.  Bernard  Mining  Co.,  196  U.  S.  239  125 

Mather  t;.  Ottawa,  114  111.  659 231 

Matter  of,  see  name  following 

Mauldin  v.  Greenville,  33  S.  C.  i      46,  49 


256  TABLE  OF  CASES 

Mayor  r.  Ray,  19  Wall.  468  . 38 

Mayor  of,  see  name  of  city 

Meyer  v.  Muscatine,  i  Wall.  384      37 

Minturn  v.  Larue,  23  How.  435 36,  42 

Mobile  V.  Yuille,  3  Ala.  137 182 

Montgomery,  In  re,  163  Cal.  457 102 

Moses  V.  United  States,  16  App.  D.  C.  428 71,  75 

Mt.  Vernon  First  Nat'l  Bank  v.  Sarlls,  129  Ind.  201     ....       97 

Muncie  Natural  Gas  Co.  v.  Muncie,  160  Ind.  97 42 

Munn  V.  Illinois,  94  U.  S.  113 178,186 

New  London  v.  Brainerd,  22  Conn.  552 224 

New  Shoreham  v.  Ball,  14  R.  I.  566 150 

New  York  v.  Johns-Manville  Co.,  89  N.  Y.  App.  Div.  449     .  74 

Noblesville  v.  Gas  &  Improvement  Co.,  157  Ind.  162  ....  42 

Norman  v.  Kentucky  Board,  93  Ky.  537 235 

Northwestern  Laundry  v.  Des  Moines,  239  U.  S.  486  ....  75 

Oklahoma  City  v.  State,  28  Okla.  780 153 

Olcott  V.  Supervisors,  16  Wall.  678 218,  239 

Oliver  v.  Worcester,  102  Mass.  489 212 

Olympia  v.  Man,  i  Wash.  389 97 

Omaha  Water  Co.  v.  Omaha,  147  Fed.  I 42 

Opinion  of  Justices,  58  Me.  590 197,  240 

Opinion  of  Justices,  150  Mass.  592 195 

Opinion  of  Justices,  "155  Mass.  598 195 

Opinion  of  Justices,  182  Mass.  605 196 

Opinion  of  Justices,  204  Mass.  607 140 

Opinion  of  Justices,  204  Mass.  616 134,  140 

Opinion  of  Justices,  211  Mass.  624 144 

Opinion  of  Justices,  (Vt.)  86  Atl.  307 28 

Ottawa  t'.  Carey,  108  U.  S.  no 38,231,242 

Ottawa  V.  National  Bank,  105  U.  S.  342 242 

Owensboro  v.  Owensboro  Waterworks  Co.,  191  U.  S.  358    .    .       43 
Owners  of  Ground  v.  Mayor  of  Albany,  15  Wend.  (N.  Y.)  374    206 

Palestine  v.  Siler,  225  111.  630 49 

Paris  V,  Sturgeon,  (Tex.)  1 10  S.  W.  459 52 

Parker  v.  Concord,  71  N.  H.  468 212 


TABLE  OF  CASES  257 

Parkersburg  v.  Brown,  106  U.  S.  487 241 

Passaic  v.  Paterson  Bill  Posting  Co.,  72  N.  J.  L.  285    ...     78,  79 

Patout  Bros.  v.  Mayor  etc.  of  New  Iberia,  (La.)  70  So.  616    .  99 
Pennsylvania  Mutual  Life  Ins.  Co.  v.  Philadelphia,  242  Pa. 

St.  47 ^ 138,  139 

Pennsylvania  Mutual  Life  Ins.  Co.  v.  Philadelphia,  22  Pa. 

Dist.  195 138 

Pennsylvania  R.  Co.  v.  Mayor  etc.  of  Jersey  City,  (N.  J.) 

87Atl.  465 73 

People  V.  Brady,  26  N.  Y.  Misc.  82 93 

People  z;.  Budd,  117  N.  Y.  I 179 

People  V.  Calder,  89  N.  Y.  App.  Div.  503  .........  iii 

People  V.  Chicago,  51  111.  17 209 

Peoples.  Chicago,  261  111.  16 116 

People  V.  Cooper,  83  III.  585 26 

People  V.  Detroit  etc.  Co.,  (Mich.)  153  N.  W.  799 74 

People  V.  D'Oench,  1 1 1  N.  Y.  359 93 

People  V.  Ericsson,  (III.)  105  N.  E.  315 98 

People  V.  Green,  85  N.  Y.  App.  Div.  400 77 

People  V.  Hastings,  207  N.  Y.  763 80 

People  V.  Horton,  41  N.  Y.  Misc.  309 68,  72 

People  V,  Kennedy,  207  N.  Y.  533 18 

People  V,  Lewis,  86  Mich.  273 71 

People  V.  Murphy,  195  N.  Y.  126 78,  80 

People  V.  Oak  Park,  (111.)  107  N.  E.  636 98 

People  i;.  Roberts,  153  N.  Y.  Supp.  143 117 

People  V.  Salomon,  51  111.  37 209 

People  i;.  Stroebel,  209  N.  Y.  434 117 

People  V.  Sturgis,  121  N.  Y.  App.  Div.  407 71 

Philadelphia  tJ.  Linnard,  97  Pa.  St.  242 113 

Pittsburgh  v.  Keech  Co.  21  Pa.  Sup.  548 73 

Piatt  V.  San  Francisco,  158  Cal.  74 161 

Police  Jury  v.  Britton,  15  Wall.  566 38 

Porter  v.  Vinzant,  49  Fla.  213 40 

Pritz,  Ex  parte,  9  la.  30 25 

Qunitini  v.  Mayor  etc.  of  Bay  St.  Louis,  64  Miss.  483     ...  118 

Quong  Wo,  £x  ^arte,  161  Cal.  220 loi 


258  TABLE  OF  CASES 

Radford  r.  Clark,  113  Va.  199 54 

Reinboth  v.  Pittsburgh,  41  Pa.  St.  278 36 

Reinman  v.  Little  Rock,  237  U.  S.  171 99i  105 

Rochester  v.  West,  164  N.  Y.  510 80 

Rogers  v.  Burlington,  3  Wall.  654 38 

Rome  V.  Cabot,  28  Ga.  50      45 

Root's  Case,  77  Pa.  St.  276 209 

Ross  V.  Long  Branch,  73  N.  J.  L.  292      210 

Russell,  In  re,  158  N.  Y.  Supp.  162 105 

St.  Louis  V.  Bell  Tel.  Co.,  96  Mo.  623 42 

St.  Louis  y.  Dorr,  145  Mo.  466 114 

St.  Louis  V.  Heitzeberg  etc.  Co.,  141  Mo.  375 70,  72,  73 

St.  Louis  v.  Hill,  116  Mo.  527 no 

St.  Louis  r.  Russell,  116  Mo.  248 98,113 

St.  Louis  V.  Griswold,  58  Mo.  175 206,  208 

St.  Louis  V.  Schoenbusch,  95  Mo.  618 40 

St.  Louis  Gunning  Adv.  Co.  v.  St.  Louis,  235  Mo.  99  ...    .       80 

St.  Marys  i;.  Woods,  67  W.  Va.  no 28 

St.  Paul  V,  Gilfillan,  36  Minn.  298 72 

St.  Paul  V.  Haugbro,  93  Minn.  59 72 

St.  Paul  V.  Johnson,  69  Minn.  184 72 

Salisbury  Land  &  Imp.  Co.  v.  Commonwealth,  215  Mass.  371     149 

Savage,  Ex  parte,  63  Tex.  285 82 

Savanna  v.  Robinson,  81  111.  App.  471 39 

Schmidinger  r.  Chicago,  226  U.  S.  578 183 

Schneider  u.  Menasha,  118  Wis.  298 52,53 

Seybert  v.  Pittsburgh,  i  Wall.  272 36,  38 

Shea  r.  Muncie,  148  Ind.  14 98 

Shelby  County  v.  Exposition  Co.,  96  Tenn.  653 236 

Shoemaker  v.  United  States,  147  U.  S.  282 205 

Sinclair  v.  District  of  Columbia,  20  App.  D.  C.  336     ....       75 

Sing  Lee,  £x />or^e,  96  Cal.  354 113 

Slaughter  House  Cases,  16  Wall.  36 188 

Spaulding  r.  Lowell,  23  Pick.  (Mass.)  71 I93»  212 

Spaulding  v.  Peabody,  153  Mass.  129 49 

State  w.  Barnes,  22  Okla.  191 153.217 

State  V.  Cornell,  53  Neb.  556    . 236 


TABLE  OF  CASES  259 

State  V.  Dllley,  (Neb.)  145  N.  W.  999 226 

State  V.  Eau  Claire,  40  Wis.  533 230 

State  V.  Gurry,  (Md.)  88  Atl.  546 106 

State  v.  Houghton,  (Minn.)  158  N.  W.  1017 118,  121 

State  V,  Hurley,  73  Conn.  536 113 

State  V.  Indianapolis,  Union  Ry.  Co.,  160  Ind.  45 44 

State  V.  Lamb,  (N.  J.)  98  Atl.  459 77,  78 

State  V.  Lynch,  88  Oh.  St.  71 220 

State  V.  Merrill,  37  Me.  329 35 

State  V.  Millar,  21  Okla.  448 153 

State  V.  Osawkee  Township,  14  Kan.  418 246 

State  V.  Staples,  157  N.  C.  637 82 

State  V.  Thompson,  149  Wis.  488 28 

State  V.  Tower,  185  Mo.  79   .    .    .   '. 72,  73 

State  V.  Whitlock,  149  N.  C.  542      78,  79 

State  v.  Withnell,  78  Neb.  33 113 

State  V.  Withnell,  91  Neb.  loi 104 

Stetson  V.  Kempton,  1.3  Mass.  272 212 

Stokes  V.  New  York,  14  Wend.  (N.  Y.)  87 40 

Stubbs  t;.  Scott,  (Md.)  95  Atl.  1060 115 

Sun  Printing  etc.  Asso.  v.  Mayor  etc.  of  New  York,   152 

N.  Y.  257      167 

Sylvester  Coal  Co.  v.  St.  Louis,  130  Mo.  323 40 

Tash  V.  Adams,  64  Mass.  252 224 

Tatham  v.  Philadelphia,  1 1  Phila.  276 223 

Taylor  Cleveland  &  Co.  v.  Pine  Bluff,  34  Ark.  603 39 

Thompson-Houston  Electric  Co.  v.  Newton,  42  Fed.  723    .    .  50 

Tindley  v.  Salem,  137  Mass.  171 212 

Torrent  f.  Muskegon,  47  Mich.  115 40 

Union  Ice  &  Coal  Co.  v.  Ruston,  (La.)  66  So.  262 200 

Varney  &  Green  r.  Williams,  155  Cal.  318 78 

Vaughn  v.  Village  of  Greencastle,  104  Mo.  App.  206    ....  41 

Vicksburg  v.  Vicksburg  Waterworks  Co.,  202  U.  S.  453  .    .    .  166 

Vidal  t;.  Girard's  Executors,  2  How.  127 34 

Village  of,  see  name  of  Village 

Von  Phul  V.  Hammer,  29  la.  222      25 


26o  TABLE  OF  CASES 

Walker  t;.  Cincinnati,  21  Oh.  St.  14 52 

Water  Power  Cases,  148  Wis.  124 232 

Water  Supply  of  New  York,  In  re,  211  N.  Y.  174 172 

Waterworks  Co.  v.  Webb  City,  78  Mo.  App.  422      41 

Weismer  v.  Village  of  Douglas,  64  N.  Y.  91 242 

Welch  V.  Swasey,  193  Mass.  364 94,  95,  108 

Welch  V.  Swasey,  214  U.  S.  91 95,  108 

Wells  V.  Mayor  etc.  of  Atlanta,  43  Ga.  67 45 

Western  Paving  etc.  Co.  v.  Railroad  Co.,  128  Ind.  525    ...  42 

Wheelock  v.  Lowell,  196  Mass.  220      215 

Whiting  V.  Sheboygan  etc.  Rd.  Co.,  25  Wis.  167 238 

White  V.  Stamford,  37  Conn.  578 214 

Whitmier  r.  Buffalo,  118  Fed.  773 80 

Willison  i;.  Cooke,  (Col.)  130  Pac.  828 117 

Wilshire,  In  re,  103  Fed.  620 82 

Worden  v.  New  Bedford,  131  Mass.  23 212 

Yazoo  City  v.  Lightcap,  82  Miss.  148      26 

Zanesville  v.  Gas-Light  Co.,  47  Oh.  St.  i 42 


INDEX 


Abattoirs,  denial  of  implied  power 
to  maintain,  48 

Advertising  the  city,  232-234 

Esthetics,  not  a  ground  for  prohi- 
bition of  billboards,  77-79,  82, 
84,  85;  contrary  view  by  Philip- 
pine supreme  court,  89;  proba- 
bility of  inclusion  among  police 
power  subjects,  90,  91;  not  a 
ground  for  limiting  building 
heights,  94-96 ;  not  a  ground  for 
establishing  building  lines,  iii- 
113;  not  a  ground  for  establish- 
ing residence  districts,  1 15-123; 
excess  condemnation  for,  137, 
139,  142,  143,  151 

Assessments,  special,  recoupment 
by  means  of,  149;  for  park  pur- 
poses, 206,  207 

Auditoriums,  power  of  city  to 
establish,  21 1-22 1 

Austin,  Tex.,  water  power  in,  230 

Bakers,  regulation  of,  175,  178, 
182,  183 

Baltimore,  regulation  of  building 
heights  in,  96, 107;  regulation  of 
building  in,  114,  115;  excess 
condemnation  in,  139,  140;  fac- 
tory  site   commission   in,    233, 

234 

Band  concerts,  power  of  city  to 
furnish,  221-226 

Bay  St.  Louis,  Miss.,  residence  dis- 
trict in,  118 

Beer,  regulation  of  price  of,  176 


Billboards,  may  not  be  prohibited 
on  aesthetic  grounds,  77-79, 
82,  84,  85;  contrary  rule  in 
Philippines,  89,  90;  may  be  reg- 
ulated for  public  safety,  health, 
peace,  morals,  79-87;  may  be 
excluded  from  residence  dis- 
tricts, 83-87,  109;  consent  of 
adjacent  property  owners  may 
be  required  for,  86;  compared 
with  noxious  establishments,  87; 
projection  value  theory  of, 
88,  90 

Boston,  charter  of,  13;  regulation 
of  building  heights  in,  94,  95, 
107,  108;  excess  condemnation 
in,  140;  fire  in,  243 

Bread,  regulation  of  price  of,  175, 
182,  183 

Brick  yard,  exclusion  of,  from  resi- 
dence districts,  102-105 

Brooklyn,  building  line  In,  iii; 
authorized  to  acquire  land  rem- 
nants, 132;  condemnation  of 
waterworks  in,  170-172 

Buffalo,  municipal  entertainment 
in,  222 

Building  heights,  92-96;  zones 
for,  106-109 

Building  lines,  establishment  of, 
in  zones,  1 09-1 14 

Business,  relation  of  government 
to,  176-183;  public  and  private, 
distinguished,  178-202,  250 

Cabmen,  regulation  of,  178,  184 


262 


INDEX 


Calamity,  public,  power  of  city  to 
aid  private  persons  in  time  of, 
244-250 

Casino,  erection  of,  in  park,  210 

Celebrations,  power  of  city  to  fur- 
nish, 221-225 

Charleston,  S.  C,  fire  in,  245 

Charter,  municipal,  character  of 
early,  2 ;  change  in  character  of, 
2,  3;  size  of  New  York  City,  3; 
power  of  making,  necessary  for 
home  rule,  5, 6;  alteration  of,  by 
corporate  authorities,  9-14;  and 
ordinances,  distinction  between, 
II,  12,  19-22;  of  New  York,  12, 
22,23;  of  Boston,  13;  reference 
of,  to  voters,  14-19;  is  not  a 
contract,  16,  17;  construction 
of  powers  granted  by,  29-57, 
71,72 

Chicago,  subways  in,  47;  regula- 
tion of  billboards  in,  83-87; 
establishment  of  residence  dis- 
trict in,  115,  116 

City  planning,  questions  of  law 
involved  in,  92-152 

Coal  business,  see  Fuel  business 

Combinations  in  restraint  of  trade, 
174,  186,  187,  198 

Commerce  and  industry,  promo- 
tion of,  by  development  of  water 
power,  229-232 ;  by  advertising, 
232-234;  by  giving  financial 
aid  to  private  enterprise,  237- 
250 

Common  carriers,  regulation  of, 
178, 180 

Competition,  between  city  and 
utility  company,  164-170;  un- 
fair methods  of,  174;  modern 
regulation  of,  177 


Concerts,  power  of  city  to  furnish, 
221-226 

Congress,  construction  of  powers 
of,  compared  with  construction 
of  municipal  powers,  31-33,  57; 
has  no  general  police  power,  58 ; 
power  over  commerce,  174,  191, 
232 ;  application  of  rule  of  pub- 
lic purpose  to  act  of,  248 

Construction  of  municipal  powers, 
28-57;  rule  of  strict,  29,  30; 
compared  with  construction  of 
powers  of  Congress,  31-33;  lib- 
erality of,  in  early  cases,  34-36; 
in  respect  to  nuisances,  71,  72 

Contract,  rate  regulation  by,  42, 
43;  implied  power  of  cities  to 
supply  utility  service  by,  41-43; 
freedom  of,  179;  see  also  Fran- 
chises 

Convention  hall,  see  Public  halls 

Corporate  purpose,  see  Municipal 
purpose 

Cost  of  living,  see  Living  costs 

Crime,  relation  of  recreation  to, 
204 

Dances,  municipal,  226 

Debts,  municipal,  exclusion  of 
utility  debts  from  limitations 
on,  157,  158;  for  utilities  se- 
cured only  against  utility  prop- 
erties, 159,  160;  referenda  on, 
161 

Delegation,  of  legislative  power, 
7-29;  of  ordinance-making  pow- 
er, 8,  9;  to  corporate  authori- 
ties of  power  to  alter  charters, 
9-14 

Delinquency,  juvenile,  relation  of 
recreation  to,  204 


INDEX 


263 


Denver,  residence  district  in,  116, 
117;  auditorium  in,  216,  217 

Detroit,  home  rule  statute  applica- 
ble to,  declared  void,  27 

Dillon,  on  rules  of  construction, 
30,57 

Districts,  see  Zones 

Draymen,  regulation  of,  189 

Due  process  of  law,  and  the  police 
power,  63,  64;  and  the  rule  of 
public  use,  125,  128;  and  price- 
fixing,  192 

Easements,  condemnation  of,  in 
lieu    of     excess   condemnation, 

151 

Eau  Claire,  Wis.,  water  power  in, 
229,  230 

Economic  subjects  of  the  police 
power,  61,  121, 122 

Education,  relation  of  recreation 
to,  203 

Electric  fixtures,  implied  power  of 
city  to  furnish,  56 

Electric  plant,  implied  power  to 
establish,  45-48;  implied  power 
to  expand  into  commercial  field, 
49-51;  competition  in,  168; 
see  also  Public  utilities 

Elevators,  grain,  regulation  of, 
186,  187 

Eminent  domain,  implied  power 
under,  54;  distinguished  from 
police  power,  65-67,  119;  excess 
condemnation  under,  123-152; 
only  for  public  use,  124,  127; 
acquisition  of  public  utilities 
under,  170-172;  acquisition  of 
parks  under,  205-211;  as  a  test 
of  public  character  of  a  busi- 
ness, 246 


Entertainments,  power  of  city  to 

furnish,  221-225 

Equal  protection  of  the  laws,  and 
the  police  power,  63,  64 

Excess  condemnation,  as  a  part  of 
city  planning,  92 ;  definition  of, 
124;  under  the  rule  of  public 
use,  125;  by  constitution  or 
statute,  127-129;  of  land  rem- 
nants, 129-136;  for  the  protec- 
tion of  improvements,  136-146; 
for  undefined  purposes,  146- 
149;  for  financial  profit,  149- 
151;   alternatives  to,  151,  152 

Exhibits,  municipal,  at  exposi- 
tions, 235-237 

Exposition,  centennial,  223;  mu- 
nicipal exhibits  at,  235-237; 
Columbian,  235;  Tennessee  cen- 
tennial, 235 ;  Trans- Mississippi, 
236 

Exterritorial  powers  of  cities,  by 
implication,  51-53 

Factories,  exclusion  of,  from  resi- 
dence districts,  100-106,  118 
Fee,  distinguished  from  price,  154 
Ferries,  regulation  of,  178,  181 
Fire  departments,  a  public  utility 

in  Oklahoma,  153 
Fourth  of  July,  power  of  cities  to 

celebrate,  224,  225 
Franchises,  no  implied  power  to 
grant  exclusive,  42 ;  purchase  of, 
in  one  city  by  another  city,  52, 
53;  obstruct  municipal  owner- 
ship, 162;  exclusive,  164-167; 
strict  construction  of  exclusive, 
164-167;  provisions  for  munici- 
pal ownership  in  modern,  169, 
170;  value  of,  in  condemna- 
tion, 172 


264 


INDEX 


Freemen,  admission  of,  by  city, 

175 
Fuel  business,  power  of  city  to 
enter,  194-199 

Garages,  public,  exclusion  of,  from 
residence  districts,  98,  117 

General  welfare,  see  Police  power 

General  welfare  clauses  of  munici- 
pal charters,  32,  33,  40 

Guthrie,  Okla.,  convention  hall  in, 
217 

Halls,  see  Public  halls 

Health,  public,  a  police  power  sub- 
ject, 59,  60;  regulation  of  bill- 
boards for  protection  of,  81,  84; 
limitation  of  building  heights 
for  protection  of,  95;  noxious 
industry  zones  for  protection  of, 
100;  relation  of  industrial  zones 
to,  101-106;  relation  of  build- 
ing line  to,  11  i-i  13;  relation  of 
residence  district  to,  1 1 6-1 18, 
120;  excess  condemnation  for 
promotion  of,  137,  139,  142- 
145,  151;  relation  of  recreation 
to,  203 

Heights  of  buildings,  regulation  of, 
92-96;  regulation  of,  by  zones, 
106-109 

Home  rule,  municipal,  chief  argu- 
ment for,  2-4;  capacity  of  city 
for,  3,  4;  by  constitutional 
grant,  4;  legal  difficulties  arising 
out  of  constitutional  grant  of, 
5;  by  legislative  grant,  6-29; 
under  New  York  statute  of  1913, 
constitutionality  of,  9,  10;  in 
Michigan  and  Texas,  21;  mu- 
nicipal ownership  under,  161; 
see  also  Self-government 


Housing  conditions,  zoning  for 
improvement  of,  120;  excess 
condemnation  for  improvement 
of,  144,  145 

Ice  business,  power  of  city  to  en- 
ter, 199-201 

Increment,  unearned,  excess  con- 
demnation for  intercepting,  149- 
151 

Industrial  districts,  100-106,  118 

Industry,  see  Commerce  and  in- 
dustry 

Initiative  and  referendum,  for 
local  charter-making,  20;  see 
also  Referendum 

Innkeepers,  regulation  of,  178, 
181,  189 

Interest,  regulation  of  rate  of. 
190 

Knoxville,  waterworks  in,  165 

Laissez  faire,  doctrine  of,  177 

Laundries,  public,  regulation  of, 
loi;  exclusion  of,  from  resi- 
dence districts,  loi,  102 

Legislative  power,  non-delegation 
of,  7-29 

Licenses,  element  of  monopoly  in, 
188 

Liquors,  regulation  of  price  of,  176 

Little  Rock,  regulation  of  livery 
stables  in,  98,  99 

Livery  stables,  exclusion  of  from 
designated  districts,  98-100,  105 

Living  costs,  ways  in  which  city 
may  control,  174;  control  by 
regulation  of  prices,  175-192; 
by  municipal  trade,  193-202 

Local  self-government,  see  Home 
rule,  Self-government 


INDEX 


265 


Long  Branch,  N.  J.,  casino  in,  210 

Loose  construction,  see  Construc- 
tion of  municipal  powers 

Los  Angeles,  regulation  of  livery 
stables  in,  99;  industrial  zones 
in,  100-105,  107 

Lumber  yard,  exclusion  of,  from 
residence  districts,  102 

Manufacturing  business,  city  may 
not  enter,  197,  240,  241;    mu- 
nicipal  development   of   water 
power  for,  229-232;    municipal 
aid  to,  240-243;    see  also  Fac- 
tories 
Markets,  an  early  municipal  func- 
tion, 174,  192,  193;    foodstuffs 
could  be  sold  only  at,  176;  re- 
cent interest  in,  193,  201 
Meat,  regulation  of  price  of,  175 
Memorial  hall,  see  Public  halls 
Millers,  regulation  of,  178,  189 
Minneapolis,  residence  district  in, 

118,  119 
Monopoly,  in  public  utilities,  154, 
168;  creation  of,  by  city,  175; 
in  medieval  times,  176;  as 
basis  for,  public  character  of 
a  business,  180,  184-188;  nat- 
ural, 184,  185;  of  fact,  185-187, 
198,201;  legal,  187, 188;  power 
of  government  to  create,  188; 
see  also  Combinations  in  restraint 
of  trade,  Competition 
Morals,  public,  a  police  power  sub- 
ject, 59,  60;  billboard  restric- 
tions for  protection  of,  79,  81, 
84;  commercial  amusements 
and,  225,  226 
Motion  picture  theater,  municipal, 
220 


Municipal  ownership  of  public 
utilities,  implied  power  of,  44- 
48,  162;  implied  power  to  ex- 
pand into  commercial  service, 
48-51;  under  constitutional 
sanction,  1 57-1 61;  under  statu- 
tory sanction,  1 61-170;  by 
exercise  of  eminent  domain,  170; 
slow  movement  toward,  199; 
see  also  Municipal  trade,  Public 
utilities 

Municipal  purpose,  a  local  public 
purpose,  156;  public  utilities  are 
a,  156, 157 

Municipal  trade,  174,  193-202 

Nashville,  exposition  at,  236 

Natural  resources,  protection  of, 
under  police  power,  61;  devel- 
opment of,  by  city,  229-232; 
power  of  city  to  aid  in  develop- 
ment of,  242,  243 

Necessary  and  proper  clause,  of 
National  constitution,  31-33; 
of  municipal  charters,  32,  33 

New  Haven,  home  rule  statute  for, 
27 

New  Orleans,  excepted  from  home 
rule  statute,  26;  subscription 
to  stock  of  theater  company, 
219 

Newport,  R.  L,  municipal  enter- 
tainment in,  222 

New  York  City,  charter  of,  12, 
22,  23;  smoke  nuisance  ordi- 
nance, 72;  regulation  of  height 
of  buildings  in,  92,  93;  early  ex- 
clusion of  noxious  industries  in, 
97 ;  authorized  to  condemn  land 
remnants,  133;  subways  in, 
167,    168;    early  regulation   of 


266 


INDEX 


prices   of   comestibles   in,    175, 
176;  early  markets  in,  192,  193; 
Central  Park  in,  205 
Niagara  Falls,   exclusion  of  fac- 
tories from  residence  districts  in, 

105 
Norfolk,  Va.,  charter  of,  24 
Nuisances,   private,    69,    70,   87; 

public,  70,  87;    per  se,  70-72; 

effect  of  abating  private,  97 

Omaha,  exposition  at,  236;  pro- 
hibition of  brick  kilns  in,  104 

Opera  houses,  power  of  city  to  es- 
tablish, 2 I 1-22 I 

Optional  city  government  law  of 
New  York,  constitutionality 
of,  10 

Ordinances,  delegation  of  power 
to  make,  8,  9;  and  charter,  dis- 
tinction between,  II,  12,  19-22 

Ottawa,  111.,  water  power  in,  231, 
232 

Parks,  a  public  utility  In  Okla- 
homa, 153;  kinds  of,  204,  205; 
are  for  a  public  use,  205-211; 
special  facilities  for  recreation 
in,  209,  210 

Peace,  public,  a  police  power  sub- 
ject, 59,  60 

Philadelphia,  implied  power  of,  to 
accept  a  trust,  34,  35;  author- 
ized to  condemn  land  remnants, 
133;  excess  condemnation  in, 
138,  139;  municipal  entertain- 
ment in,  223 

Philippines,  regulation  of  bill- 
boards in,  89,  90 

Playgrounds,  204,  209 

Plumbing  business,  implied  power 
of  city  to  maintain,  56 


Police  power,  explanation  of,  58, 
59;  common  subjects  of,  59-63, 
121,  122;  distinguished  from 
powers  of  taxation  and  eminent 
domain,  65-67,  119;  delegation 
of  parts  of,  to  cities,  67;  smoke 
nuisance  may  be  regulated  un- 
der, 72-76;  billboards  may  be 
regulated  or  prohibited  under, 
76-91 ;  height  of  buildings  may 
be  regulated  under,  92-96;  es- 
tablishment of  zones  under,  96- 
123;  establishment  of  monopoly 
under,  188 
Port  facilities,  174,  201,  228 
Portland,  Ore.,  charter  of,  23 
Prices,  distinguished  from  fees, 
154;  municipal  regulation  of, 
174-192;  see  also  Rates 
Private  business,  may  not  be  regu- 
lated as  to  price  and  service, 
1 78-1 92 ;  power  of  city  to  enter, 
192-202;  municipal  aid  to, 
237-250 
Projection  value,  theory  of,  88,  90 
Property,  consent  of  owners  of,  a 
valid  requirement  under  police 
power,  84-86,  113;  protection  of 
value  of,  as  a  subject  of  police 
power,  89,  95,  104,  106,  114, 
115,  117,  118,  1 19-123;  impair- 
ment of  value  of,  under  police 
power,  103,  104;  owners  of, 
may  not  be  empowered  to  im- 
pose police  restrictions,  112, 113; 
condemnation  of  excess,  123- 
152;  protection  of  value  of,  by 
excess  condemnation,  142,  145, 
146;  power  of  city  to  buy  and 
sell,  150;  alienation  of  munici- 
pal, 238 


INDEX 


267 


Protection  of  public  improve- 
ments, 130,  136-146;  see  also 
Excess  condemnation 

Public  business,  subject  to  regula- 
tion, 178-192;  power  of  city  to 
enter,  192-202;  municipal  aid 
to,  239,  240,  242 

Public  domain,  alienation  of,  248 

Public  halls,  a  public  utility  in 
Oklahoma,  153;  power  of  cities 
and  towns  to  establish,  21 1-22 1 

Public  purpose,  rule  of,  in  taxa- 
tion, 124, 125-193, 198, 231,  240, 
247;  includes  municipal  pur- 
pose, 156,  157;  never  applied  to 
act  of  Congress,  248 

Public  use,  rule  of,  in  eminent  do- 
main, 124-127;  is  a  requirement 
of  due  process  of  law,  125,  128; 
as  applied  to  condemnation  of 
excess  land  remnants,  134-136; 
as  applied  to  park  lands,  205-21 1 

Public  utilities,  implied  power  of 
cities  in  respect  to,  41-57;  regu- 
lation of  rates  of,  under  police 
power,  61;  definition  of,  153- 
156;  municipal  ownership  of, 
1 56-173*  199;  are  public  busi- 
nesses, 184;  legal  monopoly  in, 
187,  188;  municipal  aid  to,  249 

Railways,  municipal  aid  to,  37-39, 
240,  246,  248,  249;  prevention 
of  smoke  nuisance  by,  73;  see 
also  Public  utilities,  Street  rail- 
ways 

Rates,  public  utility,  distinction 
between  power  to  contract  for 
and  power  to  legislate  for,  42, 
43;  regulation  of  interest,  190; 
see  also  Prices 


Real  estate,  power  of  city  to  buy 
and  sell  for  profit,  150;  see  also 
Property 
Recoupment,  excess  condemnation 
for,  149;  special  assessments  for, 
149.  151 
Recreation,  municipal,  relation  of 
to    functions    of    government, 
203,  264;  parks  for,  204;  public 
halls,  auditoriums,  opera  houses, 
theaters    for,    21 1-22 1;     enter- 
tainments,    celebrations,     con- 
certs  for,    221-225;    municipal 
vs.  commercialized,  225,  226 
Referendum,  on  municipal  char- 
ters, 14-29;   on  debts  for  utili- 
ties, 160;  on  all  municipal  debts, 
160;     see    also    Initiative    and 
referendum 
Remnants  of  land,  condemnation 

of  excess,  129-136,  145,  151 
Repeal  of  charter  provisions  by 

ordinance,  9-14 
Replotting,   excess  condemnation 

for,  129,  130,  145,  147,  151 
Residence  districts,  exclusion  of 
billboards  from,  83-87;  exclu- 
sion of  noxious  industries  from, 
96-100;  exclusion  of  all  indus- 
tries from,  100-106;  exclusion 
of  all  business  from,  1 14-123; 
see  also  Zones 
Restrictions  on  excess  property, 

131,  146-149 
Richmond,    Va.,   charter   of,    24; 

building  line  in,  11 1 
Rock  quarry,   implied   power  to 

acquire,  53-55 
Rural  credits  law,  248 

Safety,  public,  a  police  power  sub- 
ject, 59;    billboard  restrictions 


268 


INDEX 


for  protection  of,  79-81,  84-86; 
limitation  of  building  heights 
for  protection  of,  95,  96,  120; 
fire  zones  for,  97 ;  relation  of  in- 
dustrial zones  to,  101-106;  re- 
lation of  building  lines  to,  iii- 
113;  relation  of  residence  dis- 
tricts to,  1 1 5-1 1 8,  120 

St.  Louis,  regulation  of  billboards 
in,  80-82;  building  lines  in,  no; 
residence  street  in,  114;  Forrest 
Parkin,  208,209' 

Saloons,  exclusion  of  from  resi- 
dence districts,  98 

San  Francisco,  opera  house  In, 
218 

Self-government,  local,  capacity  of 
city  for,  3,  4;  involves  grant  of 
charter-making  power,  5;  see 
also  Home  rule 

Sewers,  implied  power  to  con- 
struct, 46;  Implied  power  to 
carry  beyond  city  limits,  52;  a 
public  utility  in  Oklahoma,  153 

Ship  subsidies,  248 

Sky-signs,  80 

Slaughterhouses,  exclusion  of, 
from  designated  districts,  98; 
establishment  of  monopoly  in, 
1 88 ;  see  also  A  baUoirs 

Smoke  nuisance,  problem  of,  68, 
70,  71 ;  may  be  regulated  under 
police  power,  72-76;  relation  of, 
to  industrial  zones,  105 

Social  centers,  225,  226 

Special  assessments,  see  Assess- 
ments 

Street  railways.  Implied  power  to 
construct  subways,  47;  compe- 
tition In,  169;  see  also  Public 
utilities 


Strict  construction,  rule  of,  see 
Construction  of  municipal  powers 

Subways,  in  Chicago,  47;  in  New 
York,  167,  168 

Sunday  observance  laws,  60 

Supplies,  implied  power  of  city  to 
manufacture,  55 

Taxation,  distinguished  from 
police  power,  65;  only  for  a 
public  purpose,  125,  193,  198, 
231,  240,  247;  chief  source  of 
municipal  revenue,  158,  160, 
193;  exemption  of  municipally 
owned  utilities  from,  173;  see 
also  Assessments 

Terminal  facilities,  174,  201,  228 

Theaters,  power  of  city  to  estab- 
lish, 21 1-22 I 

Toledo,  motion  picture  theater  in, 
220 

Town  halls,  see  Public  halls 

Unearned  Increment,  excess  con- 
demnation for  intercepting,  149- 

151 
Utica,  residence  district  In,  117 

Waterbury,  Conn.,  home  rule  in, 
27 

Water  power,  power  of  city  to  de- 
velop, 229-232 ;  power  of  city  to 
aid  private  company  to  develop, 
242,  243;  see  also  Natural  re- 
sources 

Water  supply,  implied  power  to 
furnish,  35,  36,  44,  49;  implied 
power  to  contract  for,  41,  45; 
acquisition  of,  by  eminent  do- 
main, 170-172;  water  power  in 
connection  with,  229,  230;  see 
also  Public  utilities 


INDEX  269 

Weights    and    measures,    39,  40,  Zones,  establishment  of,  as  a  part 

174  of  city  planning,  192;  for  ex- 
Wharfingers,   regulation   of,    178,  elusion    of    noxious    industries, 

181,  189  96-100;  general  industrial,  100- 

Wines,    regulation    of    price    of,  106;   for  building  heights,  106- 

176  109;  for  building  lines,  109-1 14; 

Wood    business,    see    Fuel    bust-  for  exclusively  residential  pur- 

ness  poses,  11 4-1 18 


COLUMBIA  UNIVERSITY  PRESS 

COLUMBIA   UNIVERSITY   IN   THE  CITY  OF   NEW  YORK 


The  Press  was  incorporated  June  8,  1893,  to  promote  the  publi- 
cation of  the  results  of  original  research.  It  is  a  private  corpora- 
tion, related  directly  to  Columbia  University  by  the  provisions 
that  its  Trustees  shall  be  officers  of  the  University  and  that  the 
President  of  Columbia  University  shall  be  President  of  the  Press. 

The  publications  of  the  Columbia  University  Press  include  works 
on  Biography,  History,  Economics,  Education,  Philosophy,  Lin- 
guistics, and  Literature,  and  the  following  series: 
Columbia  University  Contributions  to  Anthropology. 
Columbia  University  Biological  Series. 
Columbia  University  Studies  in  Cancer  and  Allied  Subjects. 
Columbia  University  Studies  in  Classical  Philology. 
Columbia  University  Studies  in  Comparative  Literature. 
Columbia  University  Studies  in  English. 
Columbia  University  Geological  Series. 
Columbia  University  Germanic  Studies. 
Columbia  University  Indo-Iranian  Series. 
Columbia  University  Contributions  to  Oriental  History 

and  Philology. 
Columbia  University  Oriental  Studies. 
Columbia  University  Studies  in  Romance  Philology  and 

Literature. 
Records  of  Civilization:  Sources  and  Studies. 
Adams  Lectures  Carpentier  Lectures    Julius  Beer  Lectures 
Hewitt  Lectures  Blumenthal  Lectures  Jesup  Lectures 

Catalogues  will  he  sent  free  on  application 

LEMCKE  &  BUECHNER,  Agents 

30-32  WEST  27TH  STREET,  NEW  YORK 


COLUMBIA    UNIVERSITY  LECTURES 

ADAMS  LECTURES 
Graphical  Methods.    By  Carl  Runge,  Ph.D.,  Professor  of 
Applied  Mathematics  in  the  University  of  Gottingen.     8vo, 
cloth,  pp.  ix+148.    Price,  $1.50  net. 

JULIUS  BEER  LECTURES 
Social  Evolution  and  Political  Theory.  By  Leonard  T.  Hob- 
house,  Professor  of  Sociology  in  the  University  of  London. 
i2mo,  cloth,  pp.  ix+2i8.    Price,  $1.50  net. 

BLUMENTHAL  LECTURES 

Political  Problems  of  American  Development.  By  Albert 
Shaw,  LL.D.,  Editor  of  the  "Review  of  Reviews."  i2mo, 
cloth,  pp.  vii+268.    Price,  $1.50  net. 

Constitutional  Government  in  the  United  States.  By 
Woodrovv  Wilson,  LL.D.,  President  of  the  United  States. 
i2mo,  cloth,  pp.  vii+236.    Price,  $1.50  net. 

The  Principles  of  Politics  from  the  Viewpoint  of  the  Amer- 
ican Citizen.  By  Jeremiah  W.  Jenks,  LL.D.,  Professor  of 
Government  and  Public  Administration  in  New  York  Uni- 
versity.   i2mo,  cloth,  pp.  xviii  +  187.    Price  $1.50  net. 

The  Cost  of  Our  National  Government.  By  Henry  Jones 
Ford,  Professor  of  Politics  in  Princeton  University.  i2mo, 
cloth,  pp.  XV +147.    Price,  $1.50  net. 

The  Business  of  Congress.  By  Hon.  Samuel  W.  McCall, 
Member  of  Congress  for  Massachusetts.  i2mo,  cloth,  pp.  vii 
-+-215.    Price,  $1.50  net. 

Thomas  Jefferson:  His  Permanent  Influence  on  American 
Institutions.  By  Hon.  John  Sharp  Williams,  United 
States  Senator  from  Mississippi.  i2mo,  cloth,  pp.  ix-i-330. 
Price,  $1.50  net. 

Our  Chief  Magistrate  and  His  Powers.  By  William  Howard 
Taft,  Twenty-seventh  President  of  the  United  States.  i2mo, 
cloth,  pp.  vii -1-165.    Price,  $1.50  net. 

COLUMBIA  UNIVERSITY  PRESS 
LEMCKE  &  BUECHNER,  Agents 

30-32  WEST  27TH  street,  new  YORK 


COLUMBIA    UNIVERSITY  LECTURES 

CARPENTIER  LECTURES 

The  Nature  and  Sources  of  the  Law.  By  John  Chipman 
Gray,  LL.D.,  Royall  Professor  of  Law  in  Harvard  Univer- 
sity.   i2mo,  cloth,  pp.  xii+332.    Price,  $1.50  net. 

World  Organization  as  Affected  by  the  Nature  of  the  Mod- 
ern State.  By  Hon.  David  Jayne  Hill,  sometime  Ameri- 
can Ambassador  to  Germany.  i2mo,  cloth,  pp.  ix-f2i4. 
Price,  1 1. 50  net. 

The  Genius  of  the  Common  Law.  By  the  Rt.  Hon.  Sir 
Frederick  Pollock,  Bart.,  D.C.L.,  LL.D.,  Bencher  of 
Lincoln's  Inn,  Barrister-at-Law.  i2mo,  cloth,  pp.  vii-f-i4i. 
Price,  $1.^0  net. 

The  Mechanics  of  Law  Making.  By  Courtenay  Ilbert, 
G.C.B.,  Clerk  of  the  House  of  Commons.  i2mo,  cloth,  pp. 
viii  +209.    Price,  $1 .50  net. 

HEWITT  LECTURES 

The  Problem  of  Monopoly.  By  John  Bates  Clark,  LL.D., 
Professor  of  Political  Economy,  Columbia  University.  i2mo, 
cloth,  pp.  vi-|- 128.    Price,  $1.25  we/. 

Power.  By  Charles  Edward  Lucke,  Ph.D.,  Professor  of  Me- 
chanical Engineering,  Columbia  University.  i2mo,  cloth, 
pp.  viiH-3i6.    Illustrated.    Price,  $2.00  «e/. 

The  Doctrine  of  Evolution.  Its  Basis  and  its  Scope.  By 
Henry  Edward  Crampton,  Ph.D.,  Professor  of  Zoology, 
Columbia  University.  i2mo,  cloth,  pp.  ix-{-3ii.  Price, 
$1.50  net. 

Medieval  Story  and  the  Beginnings  of  the  Social  Ideals  of 
English- Speaking  People.  By  William  Witherle 
Lawrence,  Ph.D.,  Associate  Professor  of  English,  Columbia 
University.     12 mo,  cloth,  pp.  xiv+236.    Price,  $1.50  net. 

Law  and  its  Administration.  By  Harlan  F.  Stone,  LL.D., 
Dean  of  the  School  of  Law,  Columbia  University.  12 mo, 
cloth,  pp.  vii+232.    Price,  $1.50  net. 

American  City  Progress  and  the  Law.  By  Howard  Lee  Mc- 
Bain,  Ph.D.,  Professor  of  Municipal  Science  and  Adminis- 
tration, Columbia  University.  i2mo,  cloth,  pp.  viii-l-269. 
Price,  $1.50  net. 

JESUP  LECTURES 

Light.  By  Richard  C.  Maclaurin,  LL.D.,  ScD.,  President  of 
the  Massachusetts  Institute  of  Technology.  i2mo,  cloth, 
pp.  ix+251.    Portrait  and  figures.  Price,  $1.50  we/. 

Scientific  Features  of  Modern  Medicine.  By  Frederic  S. 
Lee,  Ph.D.,  Dalton  Professor  of  Physiology,  Columbia  Uni- 
versity.   1 2 mo,  cloth,  pp.  vii  +  183.    Price,  ^1.50  net. 

COLUMBIA  UNIVERSITY  PRESS 
LEMCKE  &  BUECHNER,  Agents 

30-32  WEST  27TH  STREET,  NEW  YORK 


COLUMBIA    UNIVERSITY  LECTURES 

JESUP  LECTURES 

Heredity  and  Sex.  By  Thomas  Hunt  Morgan,  Ph.D.,  Pro- 
fessor of  Experimental  Zoology  in  Columbia  University. 
Second  edition.  i2mo,  cloth,  pp.  ix+284.  Illustrated. 
Price,  $1.75  net. 

Dynamic  Psychology.  By  Robert  Sessions  Woodworth, 
Ph.D.,  Professor  of  Psychology,  Columbia  University.  i2mo, 
cloth,  pp.  ix+2io.    Price,  $1.50  net. 

MUNICIPAL  GOVERNMENT 

The  Government  of  Municipalities.  By  Dorman  B.  Eaton. 
8vo,  cloth,  pp.  x+498+28.   I4.00  net. 

Municipal  Home  Rule.  A  Study  in  Administration.  By 
Frank  J.  Goodnow,  LL.D.,  President  of  Johns  Hopkins  Uni- 
versity.   i2mo,  cloth,  pp.  xxiv+283.    $1.50  net. 

Municipal  Problems.  By  Frank  J.  Goodnow,  LL.D.,  Presi- 
dent of  Johns  Hopkins  University.  l2mo,  cloth,  pp.  xiii  +321. 
$1.50  net. 

The  Law  and  the  Practice  of  Municipal  Home  Rule.  By 
Howard  Lee  McBain,  Ph.D.,  Professor  of  Municipal  Science 
and  Administration,  Columbia  University.  8vo,  cloth,  pp. 
xviii+724.   $5.00  net. 


Four  Stages  of  Greek  Religion.  By  Gilbert  Murray,  Regius 

Professor  of  Greek,  in  the  University  of  Oxford.    8vo,  cloth, 

pp.  223.    Price,  ^1.50  net. 
Lectures  on  Science,   Philosophy,  and  Art.     A  series  of 

twenty-one  lectures  descriptive  in  non-technical  language  of 

the  achievements   in  Science,    Philosophy,   and   Art.     8vo, 

cloth.    Price,  $5.00  net. 
Greek  Literature.  A  series  of  ten  lectures  delivered  at  Columbia 

University  by  scholars  from  various  universities.    8vo,  cloth, 

pp.  vii -1-306.   Price,  $2.00  net. 

COLUMBIA  UNIVERSITY  PRESS 

LEMCKE  &  BUECHNER,  Agents 

30-32  west  27TH  street,  new  YORK 


I 


